Exhibit 4.1
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▇▇▇
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▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
As Depositary
AND
OWNERS OF AMERICAN DEPOSITARY RECEIPTS
Deposit Agreement
Dated as of June 24, 1996
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TABLE OF CONTENTS
PAGE
PARTIES...........................................................................................................1
RECITALS OF THE COMPANY...........................................................................................1
ARTICLE 1.
DEFINITIONS
SECTION 1.01. American Depositary Shares.........................................................................1
SECTION 1.02. Commission.........................................................................................1
SECTION 1.03. Company............................................................................................2
SECTION 1.04. Custodian..........................................................................................2
SECTION 1.05. Deliver; Delivery; Registered Form; Bearer Form....................................................2
SECTION 1.06. Deposit Agreement..................................................................................2
SECTION 1.07. Depositary; Corporate Trust Office.................................................................2
SECTION 1.08. Deposited Securities...............................................................................2
SECTION 1.09. Dollars............................................................................................3
SECTION 1.10. Eligible Owner.....................................................................................3
SECTION 1.11. Francs.............................................................................................3
SECTION 1.12. Owner..............................................................................................3
SECTION 1.13. Receipt............................................................................................3
SECTION 1.14. Registrar..........................................................................................3
SECTION 1.15. Restricted Securities..............................................................................3
SECTION 1.16. Securities Act of 1933.............................................................................4
SECTION 1.17. Shares.............................................................................................4
ARTICLE 2.
FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION
AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.01. Form and Transferability of Receipts...............................................................4
SECTION 2.02. Deposit of Shares..................................................................................5
SECTION 2.03. Execution and Delivery of Receipts.................................................................6
SECTION 2.04. Transfer of Receipts; Combination and Split-up of
Receipts................................................................................7
SECTION 2.05. Surrender of Receipts and Withdrawal of Shares.....................................................7
SECTION 2.06. Limitations on Execution and Delivery, Transfer and
Surrender of Receipts...................................................................8
SECTION 2.07. Lost Receipt, Etc..................................................................................9
SECTION 2.08. Cancellation and Destruction of Surrendered
Receipts...............................................................................10
SECTION 2.09. Pre-Release of Receipts...........................................................................10
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ARTICLE 3.
CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS
SECTION 3.01. Providing Proofs, Certificates and Other
Information............................................................................11
SECTION 3.02. Liability of Owner for Taxes......................................................................11
SECTION 3.03. Warranties on Deposit of Shares...................................................................12
SECTION 3.04. Compliance with Law...............................................................................12
SECTION 3.05. Disclosure of Beneficial Ownership of Receipts....................................................12
ARTICLE 4.
THE DEPOSITED SECURITIES
SECTION 4.01. Cash Distributions................................................................................13
SECTION 4.02. Distributions Other Than Cash, Shares or Rights...................................................13
SECTION 4.03. Distributions in Shares...........................................................................14
SECTION 4.04. Rights............................................................................................14
SECTION 4.05. Conversion of Foreign Currency....................................................................16
SECTION 4.06. Fixing of Record Date.............................................................................17
SECTION 4.07. Voting of Shares..................................................................................18
SECTION 4.08. Changes Affecting Deposited Securities............................................................20
SECTION 4.09. Reports...........................................................................................21
SECTION 4.10. Lists of Owners...................................................................................21
SECTION 4.11. Withholding.......................................................................................21
SECTION 4.12. Dividends in Cash or Shares.......................................................................22
ARTICLE 5.
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
SECTION 5.01. Maintenance of Office and Transfer Books by the
Depositary................................................................................23
SECTION 5.02. Prevention or Delay in Performance by the Depositary or
the Company...............................................................................24
SECTION 5.03. Obligations of the Depositary, the Custodian and the
Company...................................................................................25
SECTION 5.04. Resignation and Removal of the Depositary;
Appointment of Successor Depositary.......................................................26
SECTION 5.05. The Custodian.....................................................................................26
SECTION 5.06. Notices and Reports...............................................................................27
SECTION 5.07. Issuance or Deposit of Additional Shares, Etc.....................................................28
SECTION 5.08. Indemnification...................................................................................29
SECTION 5.09. Charges of Depositary.............................................................................31
SECTION 5.10. Retention of Depositary Documents.................................................................32
SECTION 5.11. Exclusivity.......................................................................................32
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ARTICLE 6.
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment.........................................................................................32
SECTION 6.02. Termination.......................................................................................32
ARTICLE 7.
MISCELLANEOUS
SECTION 7.01. Counterparts......................................................................................34
SECTION 7.02. No Third Party Beneficiaries......................................................................34
SECTION 7.03. Severability......................................................................................34
SECTION 7.04. Owners and Holders as Parties; Binding Effect.....................................................34
SECTION 7.05. Notices...........................................................................................34
SECTION 7.06. Governing Law.....................................................................................35
SECTION 7.07. Compliance With U.S. Securities Law...............................................................35
TESTIMONIUM......................................................................................................36
SIGNATURES.......................................................................................................36
EXHIBIT A
Form of Receipt
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of June 24, 1996, among AXA, a SOCIETE
ANONYME organized under the laws of The Republic of France (herein called the
"Company"), THE BANK OF NEW YORK, a New York banking corporation (herein called
the "Depositary"), and all owners from time to time of American Depositary
Receipts issued hereunder.
W I T N E S S E T H:
WHEREAS, the Company desires to provide for the deposit of Shares
(as hereinafter defined) from time to time with the Depositary or with the
Custodian (as hereinafter defined), as agent of the Depositary for the purposes
of this Deposit Agreement, for the creation of American Depositary Shares
representing the Shares so deposited and for the execution and delivery of
American Depositary Receipts evidencing the American Depositary Shares;
NOW, THEREFORE, in consideration of the premises, it is agreed by
and among the parties hereto as follows:
ARTICLE 1.
DEFINITIONS.
The following definitions shall for all purposes, unless otherwise
clearly indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.01. AMERICAN DEPOSITARY SHARES. The term "American
Depositary Shares" shall mean the securities created hereby representing
interests in the Deposited Securities evidenced by the Receipts issued
hereunder. Each American Depositary Share shall represent one-half (1/2) of one
Share, until there shall occur a distribution upon Deposited Securities covered
by Section 4.03 or a change or other event with respect to Deposited Securities
covered by Section 4.08 with respect to which additional Receipts are not
executed and delivered, and thereafter each American Depositary Share shall
represent the type and amount of Deposited Securities specified in such
Sections.
SECTION 1.02. COMMISSION. The term "Commission" shall mean
the Securities and Exchange Commission of the United States of America
or any successor governmental agency in the United States of America.
SECTION 1.03. COMPANY. The term "Company" shall mean AXA, a
SOCIETE ANONYME organized under the laws of The Republic of France, and
its successors.
SECTION 1.04. CUSTODIAN. The term "Custodian" shall mean the
principal Paris office of AXA Banque which at the date hereof is located at ▇-▇
▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ as agent of the Depositary for the purposes of
this Deposit Agreement, and any other firm or corporation which may hereafter be
appointed by the Depositary pursuant to the terms of Section 5.05 as agent of
the Depositary for the purposes of this Deposit Agreement or as substitute or
additional custodian or custodians hereunder, as the context shall require, and
the term "Custodians" shall mean all of them, collectively.
SECTION 1.05. DELIVER; DELIVERY; REGISTERED FORM; BEARER FORM. The
terms "deliver" and "delivery," when used with respect to Shares, shall refer to
a book-entry transfer to an account designated by the transferee maintained with
an institution authorized under applicable law to effect transfers of
securities, and not to the physical transfer or delivery of certificates
evidencing Shares. If such account is maintained with the Company or its agent
for the registration and transfer of Shares, the Shares recorded therein are
referred to as Shares in "registered form." If such account is maintained with
an authorized intermediary (which itself maintains an account with Sicovam SA or
any successor thereto), the Shares recorded in such account with such
intermediary are referred to as Shares in "bearer form."
SECTION 1.06. DEPOSIT AGREEMENT. The term "Deposit Agreement"
shall mean this agreement, as the same may be amended from time to time
in accordance with the provisions hereof.
SECTION 1.07. DEPOSITARY; CORPORATE TRUST OFFICE. The term
"Depositary" shall mean The Bank of New York, a New York banking corporation,
and any successor as depositary hereunder. The term "Corporate Trust Office",
when used with respect to the Depositary, shall mean the office of the
Depositary which, at the date of this Deposit Agreement, is located at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇.
SECTION 1.08. DEPOSITED SECURITIES. The term "Deposited
Securities" as of any time shall mean the Shares at such time deposited or
deemed to be deposited under this Deposit Agreement and any and all other
securities, property and cash received by the Depositary or the Custodian in
respect thereof and at such time held hereunder, subject as to cash to the
provisions of Section 4.05.
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SECTION 1.09. DOLLARS. The term "Dollar" or "Dollars" shall mean
United States dollars or such other currency as is for the time being legal
tender in the United States of America.
SECTION 1.10. ELIGIBLE OWNER. The term "Eligible Owner" as of
any time shall mean an Owner who, as of such time, is holding a Receipt as
beneficial owner thereof and not for the benefit of, on behalf of, or for the
account of, any other person.
SECTION 1.11. FRANCS. The term "franc" or "francs" shall mean
French francs or such other currency as is for the time being legal
tender in The Republic of France.
SECTION 1.12. OWNER. The term "Owner" shall mean the person
or persons in whose name or names a Receipt is registered on the books
of the Depositary maintained for such purpose.
SECTION 1.13. RECEIPT. The term "Receipt" shall mean each
American Depositary Receipt issued hereunder evidencing American
Depositary Shares, in substantially the form of Exhibit A annexed
hereto, with appropriate insertions, modifications and omissions as
hereinafter provided in this Deposit Agreement.
SECTION 1.14. REGISTRAR. The term "Registrar" shall mean, subject
to any applicable rules or regulations of any securities exchange upon which the
American Depositary Shares may be listed or traded, any bank or trust company
having an office in the Borough of Manhattan, The City of New York, which shall
be appointed, upon prior notice to the Company, to register Receipts and
transfers of Receipts as herein provided.
SECTION 1.15. RESTRICTED SECURITIES. The term "Restricted
Securities" shall mean Shares (or Receipts evidencing such Shares) which are
acquired directly or indirectly from the Company or its affiliates (as defined
in Rule 144 under the Securities Act of 1933) in a transaction or chain of
transactions not involving any public offering (whether or not within the United
States) or which are subject to resale limitations under the Securities Act of
1933 or both, or which are held by an officer, director (or persons performing
similar functions) or other affiliate of the Company or which would require
registration under the Securities Act of 1933 in connection with the public
offer and sale thereof in the United States of America, or which are subject to
other restrictions on sale or deposit under the laws of the United States of
America or The Republic of France, the STATUTS of the Company or under any
agreement.
SECTION 1.16. SECURITIES ACT OF 1933. The term "Securities Act of
1933" shall mean the United States Securities Act of 1933, as from time to time
amended.
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SECTION 1.17. SHARES. The term "Shares" shall mean the Ordinary
Shares with a nominal value of 60 francs each of the Company, heretofore validly
issued and outstanding and fully paid and non-assessable or hereafter validly
issued and outstanding and fully paid and nonassessable; PROVIDED, HOWEVER, that
if there shall occur any change in nominal value, split-up, consolidation or
other reclassification or, upon the occurrence of any other event described in
Section 4.08, an exchange or conversion in respect of the Shares, the term
"Shares" shall thereafter mean the successor securities resulting from such
change in nominal value, split-up, consolidation or other reclassification or
such exchange or conversion. References to Shares shall include evidence of
rights to receive Shares, whether or not stated in the particular instance;
PROVIDED, HOWEVER, that in no event shall Shares include evidence of rights to
receive Shares with respect to which the full purchase price has not been paid.
ARTICLE 2.
FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION
AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS.
SECTION 2.01. FORM AND TRANSFERABILITY OF RECEIPTS. Definitive
Receipts shall be engraved or printed or lithographed and shall be executed by
the Depositary by the manual signature of a duly authorized signatory of the
Depository; PROVIDED, HOWEVER, that such signature may be a facsimile if a
Registrar for the Receipts shall have been appointed and such Receipts are
countersigned by the manual signature of a duly authorized officer of the
Registrar. No Receipt shall be entitled to any benefits under this Deposit
Agreement, or be valid or enforceable for any purpose, unless such Receipt shall
have been executed by the Depositary by the manual signature of a duly
authorized signatory of the Depositary or, if a Registrar for the Receipts shall
have been appointed and the Depositary shall have signed by facsimile signature,
countersigned by the manual signature of a duly authorized officer of the
Registrar. The Depositary shall maintain books on which each Receipt so executed
and delivered as hereinafter provided and the transfer of each such Receipt
shall be registered; PROVIDED, HOWEVER, that if a Registrar has been appointed
then such books shall be maintained by the Registrar. Receipts bearing the
facsimile signature of a duly authorized signatory of the Depositary who was at
any time a proper signatory of the Depositary shall bind the Depositary,
notwithstanding that such signatory of the Depositary has ceased to hold such
office prior to the execution of such Receipts by the Registrar and their
delivery or did not hold such office at the date of such Receipts.
The Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the provisions
of this Deposit Agreement as may be required by
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the Depositary or required to comply with any applicable law or regulations or
with the rules and regulations of any securities exchange upon which American
Depositary Shares may be listed or traded or to conform with any usage with
respect thereto, or to indicate any special limitations or restrictions to which
any particular Receipts are subject by reason of the date of issuance of the
underlying Deposited Securities or otherwise.
Title to a Receipt (and to the American Depositary Shares
evidenced thereby), when properly endorsed or accompanied by proper instruments
of transfer, shall be transferable by delivery with the same effect as in the
case of a negotiable instrument under the laws of the State of New York;
PROVIDED, HOWEVER, that the Depositary, notwithstanding any notice to the
contrary, may treat the Owner thereof as the absolute owner thereof for the
purpose of determining the person entitled to any distribution of dividends or
other distributions or to any notice provided for in this Deposit Agreement and
for all other purposes, and neither the Depositary nor the Company shall have
any obligation or be subject to any liability under this Deposit Agreement to
any holder of a Receipt unless such holder is the Owner thereof.
SECTION 2.02. DEPOSIT OF SHARES. Subject to the terms and
conditions of this Deposit Agreement, Shares may be deposited by delivery
thereof to the Depositary (in the case of Shares to be held hereunder in
registered form) or the Custodian in form satisfactory to the Custodian (in the
case of Shares to be held hereunder in bearer form) pursuant to appropriate
instructions for transfer in a form satisfactory to the Company or its agent or
such Custodian, as the case may be, together with all such certifications as may
be required by the Depositary or such Custodian in accordance with the
provisions of this Deposit Agreement, and, if the Depositary requires, together
with a written order directing the Depositary to execute and deliver to, or upon
the written order of, the person or persons stated in such order a Receipt or
Receipts for the number of American Depositary Shares issuable in respect of
such deposited Shares. The Company or its agent for registration and transfer of
Shares in the case of Shares in registered form, or the Custodian in the case of
Shares in bearer form, will, upon request by the Depositary, issue or cause to
be issued written confirmations as to holdings of Shares, it being agreed and
understood that such confirmations do not constitute documents of title. Copies
of the confirmations with respect to Deposited Securities shall be held by the
Depositary or by a Custodian for the account and to the order of the Depositary
or at such other place or places as the Depositary shall determine.
If required by the Depositary, Shares presented for deposit at any
time shall also be accompanied by an agreement or assignment, or other
instrument satisfactory to the Depositary, which will
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provide for the prompt transfer to the Custodian or the Depositary, as the case
may be, with respect to such Shares of any dividend or right to subscribe
for additional Shares or to receive other property which any person in whose
name the Shares are or have been registered may thereafter receive upon or in
respect of such deposited Shares or, in lieu thereof, such agreement of
indemnity or other agreement as shall be satisfactory to the Depositary.
The Depositary will hold all deposited Shares in bearer form
unless an Owner certifies that it is an Eligible Owner and requests the
Depositary to hold the number of Shares represented by the American Depositary
Shares evidenced by its Receipts in registered form. Upon the request of any
such Owner, the Depositary will as promptly as practicable cause the number of
deposited shares represented by such Owner's American Depositary Shares to be
held in registered form. Such form of holding may, under French companies law
and the STATUTS of the Company, entitle such Owner to instruct the Depositary as
to the exercise of double voting rights, as described in Section 4.07.
Notwithstanding the preceding paragraph, as long as the Depositary
holds any Shares pursuant to this Deposit Agreement, the Depositary shall ensure
that at least three Shares are held in the name of the Depositary in registered
form.
SECTION 2.03. EXECUTION AND DELIVERY OF RECEIPTS. Upon receipt by
any Custodian of any deposit of Shares pursuant to Section 2.02, together with
the other documents required as specified herein, such Custodian shall notify
the Depositary of such deposit and the person or persons to whom or upon whose
written order a Receipt or Receipts are deliverable in respect thereof and the
number of American Depositary Shares to be evidenced thereby. Such notification
shall be made by mail or, at the request, risk and expense of the person making
the deposit, by air courier, cable, telex or facsimile transmission. Upon
receiving such notice from such Custodian, or upon the receipt of Shares by the
Depositary, the Depositary, subject to the terms and conditions of this Deposit
Agreement (including, but not limited to the terms and conditions contained in
Section 2.02), shall execute and deliver at its Corporate Trust Office, to or
upon the order of the person or persons named in the notice delivered to the
Depositary or requested by the person depositing such Shares with the
Depositary, a Receipt or Receipts, registered in such name or names and
evidencing any authorized number of American Depositary Shares requested by such
person or persons, but only upon payment to the Depositary of the fee of the
Depositary for the execution and delivery of such Receipt or Receipts, and of
all taxes and governmental charges and fees payable in connection with such
deposit and the transfer of the deposited shares.
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SECTION 2.04. TRANSFER OF RECEIPTS; COMBINATION AND SPLIT-UP
OF RECEIPTS. The Depositary, subject to the terms and conditions of
this Deposit Agreement, shall register transfers on its transfer books
from time to time of any Receipt, upon surrender, by the Owner in person or by a
duly authorized attorney, of such Receipt properly endorsed or accompanied by
proper instruments of transfer, and duly stamped, as may be required by the laws
of the State of New York and of the United States of America. Thereupon, the
Depositary shall execute a new Receipt or Receipts evidencing the same aggregate
number of American Depositary Shares as were evidenced by the Receipt
surrendered and deliver the same to or upon the order of the person entitled
thereto.
The Depositary, subject to the terms and conditions of this
Deposit Agreement, shall, upon surrender of a Receipt or Receipts for the
purpose of effecting a split-up or combination of such Receipt or Receipts,
execute and deliver a new Receipt or Receipts for any authorized number of
American Depositary Shares requested, evidencing the same aggregate number of
American Depositary Shares as were evidenced by the Receipt or Receipts
surrendered.
The Depositary, at its expense, may appoint one or more co-
transfer agents with the approval of the Company (which approval shall not be
unreasonably withheld) for the purpose of effecting transfers, combinations and
split-ups of Receipts at designated transfer offices on behalf of the
Depositary. In carrying out its functions, a co-transfer agent may require
evidence of authority and compliance with applicable laws and other requirements
by Owners or holders of Receipts or persons entitled to Receipts and will be
entitled to protection and indemnity to the same extent as the Depositary.
SECTION 2.05. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES. Upon
surrender at the Corporate Trust Office of the Depositary of a Receipt for the
purpose of withdrawal of the Deposited securities represented thereby, and upon
payment of the fee of the Depositary for the cancellation of Receipts and
subject to the terms and conditions of this Deposit Agreement, the Company's
STATUTS, and the Deposited Securities, the Owner of such Receipt shall be
entitled to delivery of the whole number of Shares and the number of any other
Deposited Securities represented by the American Depositary Shares evidenced
thereby to an account designated by such Owner and to delivery at the Corporate
Trust Office of the Depositary of a new Receipt evidencing any fractional
Deposited Securities represented thereby. Such delivery shall be made, as
hereinafter provided, without unreasonable delay.
A Receipt surrendered for such purposes may be required by the
Depositary to be properly endorsed in blank or accompanied by proper instruments
of transfer in blank, and if the Depositary
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requires, the Owner thereof shall execute and deliver to the Depositary a
written order directing the Depositary to cause the Deposited Securities being
withdrawn to be delivered to an account designated by such Owner. Thereupon the
Depositary shall, in its discretion, subject to Sections 2.06, 3.01 and 3.02,
and to the other terms and conditions of this Deposit Agreement, effect, or
direct one (or more) of the Custodians, to effect, such delivery, except that
the Depositary may make delivery to such person or persons at the Corporate
Trust Office of the Depositary of any dividends or distributions upon such
Deposited Securities, or of any proceeds of sale of any such dividends or
distributions, which may at the time be held by the Depositary.
At the request, risk and expense of any Owner so surrendering a
Receipt, and for the account of such Owner, the Depositary shall direct the
Custodian to forward proper documents of title (if available) for any such
Deposited Securities to the Depositary for delivery at the Corporate Trust
Office of the Depositary. Such direction shall be given by mail or, at the
request, risk and expense of such Owner, by air courier, cable, telex or
facsimile transmission.
Neither the Depositary nor the Custodian shall deliver Shares
(other than to the Company or its agent as contemplated by Section 4.08), or
otherwise permit Shares to be withdrawn from the facility created hereby, except
upon the receipt and cancellation of Receipts.
SECTION 2.06. LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER AND
SURRENDER OF RECEIPTS. As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination or surrender of any Receipt, the
delivery of any distribution thereon, or the withdrawal of any Deposited
Securities, the Depositary or the Custodian may require payment from the
presenter of the Receipt or the depositor of the Shares of a sum sufficient to
reimburse it for any tax or other governmental charge and any stock transfer,
registration or conversion fee with respect thereto (including any such tax or
charge and fee with respect to Shares being deposited or Deposited Securities
being withdrawn) and payment of any applicable fees as herein provided, may
require the production of proof satisfactory to it as to the identity and
genuineness of any signature and may also require compliance with such
regulations, if any, as the Depositary may establish consistent with the
provisions of this Deposit Agreement, including, without limitation, Section
7.07.
The delivery of Receipts against deposits of Shares generally or
against deposits of particular Shares may be suspended and the transfer of
Receipts in particular instances may be refused or the registration of transfer
of outstanding Receipts generally may be suspended during any period when the
transfer books of the Depositary
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are closed, or if any such action is deemed necessary or advisable by the
Depositary, after consultation with the Company to the extent practicable (to
the extent it is not practicable for the Depositary to consult with the Company,
the Depositary will notify the Company as promptly as practicable after taking
such action and explain its reasons for doing so), or the Company at any time or
from time to time because of any requirement of law or of any government or
governmental or regulatory body or commission, or under any provision of this
Deposit Agreement, or for any other reason, subject to Section 7.07 of this
Deposit Agreement. The surrender of outstanding Receipts and withdrawal of
Deposited Securities may not be suspended subject only to (i) temporary delays
caused by closing the transfer books of the Depositary or the Company or the
deposit of Shares in connection with voting at a shareholders' meeting or the
payment of dividends, (ii) the payment of fees, taxes and similar charges and
(iii) compliance with any United States or foreign laws or governmental
regulations relating to the Receipts or to the withdrawal of the Deposited
Securities. The Depositary will comply with reasonable written instructions from
the Company requesting that the Depositary not accept for deposit hereunder any
Shares identified in such instructions in order to facilitate the Company's
compliance with United States federal securities laws, any provision of the
Company's STATUTS or French law. Without limitation of the foregoing, neither
the Depositary nor the Custodian shall accept for deposit under this Deposit
Agreement any Shares (i) which, to the actual knowledge of the Depositary, are
required to be registered under the Securities Act of 1933 prior to public sale
in the United States, unless a registration statement is in effect as to such
Shares or (ii), the deposit of which would, to the actual knowledge of the
Depositary, infringe any provisions of French law .
SECTION 2.07. LOST RECEIPT, ETC. In case any Receipt shall be
mutilated, destroyed, lost or stolen, the Depositary shall execute and deliver a
new Receipt of like tenor, in exchange and substitution for such mutilated
Receipt upon cancellation thereof, or in lieu of and in substitution for such
destroyed or lost or stolen Receipt, upon the Owner thereof filing with the
Depositary (a) a request for such execution and delivery before the Depositary
has notice that the Receipt has been acquired by a bona fide purchaser and (b) a
sufficient indemnity bond, and satisfying any other reasonable requirements
imposed by the Depositary.
SECTION 2.08. CANCELLATION AND DESTRUCTION OF SURRENDERED
RECEIPTS. All Receipts surrendered to the Depositary shall be cancelled by the
Depositary. Cancelled Receipts shall not be entitled to any benefits under this
Deposit Agreement or be valid or enforceable for any purpose, and the Depositary
is authorized to destroy Receipts so canceled. The Depositary shall keep such
records of all Receipts outstanding, and of their payment, cancellation and
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destruction, as are required under applicable Stock Transfer Association rules.
SECTION 2.09. PRE-RELEASE OF RECEIPTS. Unless requested in
writing by the Company to cease doing so, the Depositary may,
notwithstanding Section 2.03, execute and deliver Receipts prior to the receipt
of Shares pursuant to Section 2.02 (a "Pre-Release"). The Depositarymay,
pursuant to Section 2.05, deliver Shares upon the receipt and cancellation of
Receipts which have been Pre-Released, whether or not such cancellation is prior
to the termination of such Pre-Release or the Depositary knows that such Receipt
has been Pre- Released. The Depositary may receive Receipts in lieu of Shares in
satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded or
accompanied by a written representation from the person to whom Receipts or
Shares are to be delivered (a "Pre-Releasee"), that such Pre- Releasee, or its
customer, (i) as of the time of such transaction, owns the Shares or Receipts to
be remitted, as the case may be, (ii) assigns all beneficial right, title and
interest in such Shares or Receipts, as the case may be, to the Depositary in
its capacity as such and for the benefit of the Owners, and (iii) will not take
any action with respect to such Shares or Receipts, as the case may be, that is
inconsistent with the transfer of beneficial ownership (including, without the
consent of the Depositary, disposing of such Shares or Receipts, as the case may
be), other than in satisfaction of such Pre-Release, (b) at all times fully
collaterized with cash, U.S. government securities or such other collateral as
the Depositary determines, in good faith, will provide substantially similar
liquidity and security, (c) terminable by the Depositary on not more than five
(5) business days notice, and (d) subject to such further indemnities and credit
regulations as the Depositary deems appropriate. The number of American
Depositary Shares which are outstanding at any time as a result of Pre-Release
will not normally exceed thirty percent (30%) of the Shares deposited hereunder;
PROVIDED, HOWEVER, that the Depositary reserves the right to change or disregard
such limit from time to time as it deems appropriate. The Depositary will also
set dollar limits with respect to Pre-Release transactions to be entered into
hereunder with any particular Pre- Releasee on a case-by-case basis as the
Depositary deems appropriate. For purposes of enabling the Depositary to fulfill
its obligations to the Owners under this Deposit Agreement, the collateral
referred to in clause (b) above shall be held by the Depositary as security for
the performance of the Pre-Releasee's obligations to the Depositary in
connection with a Pre-Release transaction, including the Pre-Releasee's
obligation to deliver Shares or Receipts upon termination of a Pre- Release
transaction (and shall not, for the avoidance of doubt, constitute Deposited
Securities hereunder).
The Depositary may retain for its own account any compensation
received by it in connection with the foregoing.
-10-
ARTICLE 3.
CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS.
SECTION 3.01. PROVIDING PROOFS, CERTIFICATES AND OTHER
INFORMATION. Any person presenting Shares for deposit or any Owner may be
required from time to time to provide such proof of (a) citizenship, residence,
exchange control approval or payment of taxes and other governmental charges and
(b) the identity of any person legally or beneficially interested in the Receipt
and the nature of such interest, such information relating to the registration
of the Shares presented for deposit on the books of the Company (or the
appointed agent of the Company for transfer and registration of Shares) or to
provide such other information, to execute such certificates and to make such
representations and warranties, as the Depositary may deem necessary or proper
or as the Company reasonably may require by written request to the Depositary or
any Custodian. The Depositary may withhold the delivery or registration of
transfer of any Receipt, the distribution of any dividend or other distribution
or sale of rights or of the proceeds thereof, or the delivery of any Deposited
Securities until such proof or other information is provided, such certificates
are executed or such representations and warranties are made pertaining to such
Receipt.
The Depositary shall provide the Company, upon the Company's
request and in a timely manner, with copies of any information or other material
which it receives pursuant to this Section 3.01.
SECTION 3.02. LIABILITY OF OWNER FOR TAXES. If any tax or other
governmental charge shall become payable with respect to any Receipt or any
Deposited Securities represented by any Receipt, such tax or other governmental
charge shall be payable by the Owner of such Receipt to the Depositary. The
Depositary may refuse to effect registration of transfer of all or part of such
Receipt or any withdrawal of Deposited Securities represented thereby until such
payment is made, and may withhold any dividends or other distributions or, after
attempting by reasonable means to notify such Owner, may sell for the account of
the Owner thereof any part or all of the Deposited Securities represented by
such Receipt, and may apply such dividends or other distributions or the
proceeds of any such sale to payment of such tax or other governmental charge,
the owner of such Receipt remaining liable for any deficiency.
SECTION 3.03. WARRANTIES ON DEPOSIT OF SHARES. Every person
depositing shares under this Deposit Agreement, including every person
depositing Shares on behalf of an owner of Shares, shall be deemed thereby to
represent and warrant that such Shares are validly issued, fully paid and
non-assessable and that the person making such deposit is duly authorized so to
do. Every such person, including
-11-
every person depositing Shares on behalf of an owner of Shares, shall also be
deemed to represent that such Shares are not Restricted Securities. Such
representations and warranties shall survive the deposit of such Shares and
issuance of Receipts in respect thereof.
SECTION 3.04. COMPLIANCE WITH LAW. The rights of each Owner will
be subject to the STATUTS of the Company as if such Owner were a holder of
shares and to all applicable provisions of French law and the STATUTS of the
Company with regard to notification to the Company and any governmental or stock
exchange authorities of such Owner's interest in Shares. Failure by such Owner
to provide on a timely basis any such required notification of such Owner's
interest in Shares may result in the withholding of certain rights in respect of
such Owner's American Depositary Shares including, without limitation, the right
to give voting instructions in respect of the Shares represented by such
American Depositary Shares.
SECTION 3.05. DISCLOSURE OF BENEFICIAL OWNERSHIP OF RECEIPTS. The
Company and the Depositary may from time to time request Owners to provide
information as to the capacity in which they hold Receipts and regarding the
identity of any other persons then interested in such Receipts and various other
matters. The Depositary agrees to comply with reasonable written instructions
received from the Company requesting that the Depositary forward any such
requests to such owners and to forward to the Company any responses to such
requests received by the Depositary, and to use its reasonable efforts, at the
Company's request, to assist the Company in obtaining such information with
respect to the American Depositary Shares, provided that nothing herein shall be
interpreted as obligating the Depositary to provide or obtain any such
information not provided to the Depositary by such Owners.
ARTICLE 4.
THE DEPOSITED SECURITIES.
SECTION 4.01. CASH DISTRIBUTIONS. Whenever the Depositary or the
Custodian shall receive any cash dividend or other cash distribution on any
Deposited Securities, the Depositary shall, after any necessary conversion of
such distribution into Dollars pursuant to Section 4.05 and after fixing a
record date pursuant to Section 4.06, as promptly as practicable distribute the
amount thus received to the Owners of Receipts entitled thereto in proportion to
the number of American Depositary Shares held by them respectively; PROVIDED,
HOWEVER, that the Depositary shall make appropriate adjustments in the amounts
so distributed in respect of any amounts withheld or requested to be withheld by
the Company, the Custodian or the Depositary from any such distribution on
account of (i) taxes or other governmental charges including, but not limited
to, withholding
-12-
taxes referred to in Section 4.11, or (ii) reasonable expenses of the Depositary
in the conversion of foreign currency into Dollars pursuant to Section 4.05 and
any other charges of the Depositary pursuant to Section 5.09. The Depositary
shall distribute only such amount, however, as can be distributed without
distributing to any Owner a fraction of one cent. Any such fractional amounts
shall be rounded to the nearest whole cent and so distributed to Owners entitled
thereto.
SECTION 4.02. DISTRIBUTIONS OTHER THAN CASH, SHARES OR RIGHTS.
Subject to the provisions of Sections 4.11 and 5.09, whenever the Depositary or
the Custodian shall receive any distribution other than cash, Shares or rights
upon any Deposited Securities, the Depositary shall cause the securities or
property received by it to be distributed to the Owners, as of the record date
fixed pursuant to Section 4.06, of Receipts entitled thereto in proportion to
the number of American Depositary Shares held by them as of such date in any
manner that the Depositary may reasonably deem equitable and practicable for
accomplishing such distribution; PROVIDED, HOWEVER, that if in the opinion of
the Depositary such distribution cannot be made proportionately among such
Owners, or if for any other reason (including but not limited to any requirement
that the Company or the Depositary withhold an amount on account of taxes or
other governmental charges or that such securities must be registered under the
Securities Act of 1933 in order to be distributed to Owners) the Depositary
deems such distribution not to be feasible, the Depositary may adopt such method
as it may deem equitable and practicable for the purpose of effecting such
distribution, including (after consultation with the Company) the public or
private sale of the securities or other property thus received, or any part
thereof, and the net proceeds of any such sale (net of the fees and expenses of
the Depositary as provided in Section 5.09) shall be as promptly as practicable
distributed by the Depositary to the Owners entitled thereto as in the case of a
distribution received in cash; PROVIDED, HOWEVER, that any unsold balance of
such securities or property shall be distributed by the Depositary to the Owners
entitled thereto, if such distribution is feasible without withholding for or on
account of any taxes or other governmental charges and without registration
under the Securities Act of 1933, in accordance with such equitable and
practicable method as the Depositary may have adopted; PROVIDED FURTHER,
HOWEVER, that no distribution to owners shall be unreasonably delayed by any
action of the Depositary or any of its agents. To the extent such securities or
other property, or the net proceeds thereof, is not effectively distributed to
Owners as provided herein, the same shall constitute Deposited Securities and
each American Depositary Share shall thereafter also represent its proportionate
interest in such securities or other property or net proceeds.
-13-
SECTION 4.03. DISTRIBUTIONS IN SHARES. If any distribution upon
any Deposited Securities consists of a dividend in, or distribution without
payment of any subscription price of, Shares, including pursuant to any program
under which holders of Deposited Securities may elect to receive cash or Shares,
the Depositary may execute and deliver additional Receipts evidencing American
Depositary Shares representing the amount of Shares received as such dividend or
distribution and distribute to the Owners, as of the record date fixed pursuant
to Section 4.06, of Receipts entitled thereto in proportion to the number of
American Depositary Shares held by them as of such date, Receipts evidencing
additional American Depositary Shares, subject to the terms and conditions of
this Deposit Agreement with respect to the deposit of Shares and the issuance of
Receipts, including the withholding of any tax or other governmental charge as
provided in Section 4.11 and the payment of fees of the Depositary as provided
in Section 5.09. The Depositary may withhold any such distribution if it has not
received adequate assurances from the Company that such distribution does not
require registration under the Securities Act of 1933. In any case involving
fractional American Depositary Shares, the Depositary shall sell the amount of
Shares representing the aggregate of such fractions and distribute the net
proceeds, all in the manner and subject to the conditions set forth in Section
4.01 or take such other action, with the approval of the Company, as may be
appropriate. If additional American Depositary Shares are not so distributed,
each American Depositary Share shall thenceforth also represent the additional
Shares distributed with respect to the Deposited Securities represented thereby.
SECTION 4.04. RIGHTS. In the event that the Company shall offer or
cause to be offered to the holders of any Deposited Securities any rights to
subscribe for additional Shares or any rights of any other nature, the
Depositary (after consultation with the Company) shall have discretion as to the
procedure to be followed in making such rights available to any Owners,
including the distribution of warrants or other instruments therefor in such
form as it deems appropriate, or in disposing of such rights on behalf of any
Owners and distributing the net proceeds in Dollars to such Owners. If, by the
terms of such rights offering or for any other reason, the Depositary may not
either make such rights available to any Owners or dispose of such rights and
distribute the net proceeds to such Owners, then the Depositary shall allow the
rights to lapse. If, at the time of the offering of any rights the Depositary
determines in its discretion that it is lawful and feasible to make such rights
available to certain Owners but not to other Owners, (i) the Depositary shall
distribute to every Owner with respect to whom it determines the distribution to
be lawful and feasible, in proportion to the number of American Depositary
Shares held by such Owner, warrants or other instruments therefor in such form
as it deems appropriate and (ii) in respect of Owners to whom the
-14-
Depositary determines the distribution not to be lawful or feasible, the
Depositary shall use reasonable efforts to sell the rights, warrants or other
instruments in proportion to the number of American Depositary Shares held by
such Owners and distribute the net proceeds of such sales (net of the fees of
the Depositary as provided in Section 5.09 and all taxes and governmental
charges payable in connection with such rights and subject to the terms and
conditions of this Deposit Agreement) to such Owners upon an averaged or other
fair and practicable basis without regard to any distinctions among such Owners
resulting from exchange restrictions, the date of delivery of any Receipt or
otherwise. In the event that rights and the securities to which such rights
relate are not registered under the Securities Act of 1933, the Depositary shall
not be responsible for any failure to determine that it may be lawful or
feasible to make such rights available to Owners in general or to any Owner in
particular.
In circumstances in which rights would not otherwise be
distributed, if an Owner requests the distribution of warrants or other
instruments in order to exercise the rights allocable in respect of American
Depositary Shares of such Owner hereunder, the Depositary will make such rights
available to such Owner upon written notice from the Company to the Depositary
that (a) the Company has elected in its sole discretion to permit such rights to
be exercised and (b) the Owner has executed such documents as the Company has
determined in its sole discretion are reasonably required under applicable law.
Upon instruction pursuant to such warrants or other instruments to the
Depositary from such Owner to exercise such rights, upon payment by such Owner
to the Depositary for the account of such Owner of an amount equal to the
purchase price of the Shares or other securities to be received upon the
exercise of the rights, and upon payment of the fees of the Depositary as set
forth in such warrants or other instruments, the Depositary shall, on behalf of
such Owner, exercise the rights and purchase such Shares or other securities,
and the Company shall cause the Shares or other securities so purchased to be
delivered to the Depositary on behalf of such Owner. As agent for such Owner,
the Depositary will arrange for Shares so purchased to be deposited, and for
depositary shares to be delivered to such Owner in transactions exempt from, or
not subject to, the registration requirements of the Securities Act of 1933
under a separate deposit agreement to be entered into between the Company and
the Depositary providing for the issuance of depositary receipts subject to
appropriate restrictions on deposit and withdrawal of Shares and transfers of
such depositary shares as required by United States securities laws.
Except as otherwise provided in the preceding paragraph, the
Company and the Depositary will not offer rights to Owners unless a registration
statement is in effect with respect both to such rights and any securities to be
received upon exercise of such rights under
-15-
the Securities Act of 1933 or unless the offering and sale of such securities to
such Owners are exempt from registration under the Securities Act of 1933.
Nothing in this Deposit Agreement shall create any obligation on the part of the
Company to file a registration statement in respect of any rights or securities
for any purpose.
SECTION 4.05. CONVERSION OF FOREIGN CURRENCY. Whenever the
Depositary or the Custodian shall receive foreign currency, by way of dividends
or other distributions or as the net proceeds from the sale of securities,
property or rights, and if at the time of the receipt thereof the foreign
currency so received can in the reasonable judgment of the Depositary be
converted on a reasonable basis into Dollars and transferred to the United
States, the Depositary shall, subject to any restrictions imposed by applicable
law, regulations or permits, convert or cause to be converted, by sale or in any
other manner that it may determine, such foreign currency into Dollars, and such
Dollars shall be distributed, as promptly as practicable, net of any reasonable
and customary expenses incurred by the Depositary in connection with the
conversion of currency pursuant to this Section 4.05, to the Owners entitled
thereto as of the record date fixed pursuant to Section 4.06 in accordance with
any applicable provisions of Sections 4.01, 4.02, 4.03 and 4.04. Such
distribution may be made upon an averaged or other fair and practicable basis
without regard to any distinctions among owners resulting from exchange
restrictions or otherwise. Upon the request of the Company, the Depositary shall
inform the Company of the exchange rate at which foreign currency conversion has
been carried out.
If such conversion or distribution can be effected only with the
approval or license of any government or agency thereof, the Depositary shall
file as promptly as practicable such application for approval or license, if
any, as it may deem desirable; PROVIDED, HOWEVER, that if such application is
made on behalf of the Company, such application shall not be filed unless
approved by the Company, which approval shall not be unreasonably withheld or
delayed.
If at any time the Depositary shall determine, following
consultation with the Company, that in its judgment any foreign currency
received by the Depositary or the Custodian is not, pursuant to applicable law
or otherwise, convertible on a reasonable basis into Dollars transferable to the
United States, or if any approval or license of any government or agency thereof
which is required for such conversion is denied or in the opinion of the
Depositary is not obtainable, or if any such approval or license is not obtained
within a reasonable period as determined by the Depositary, the Depositary may
distribute the foreign currency (or an appropriate document evidencing the right
to receive such foreign currency) received by the Depositary or the Custodian
to, or in its discretion may hold such foreign currency proceeds uninvested for
the respective accounts
-16-
of, the Owners entitled to receive the same, without liability for interest
thereon.
If any such conversion of foreign currency, in whole or in part,
cannot be effected for distribution to some Owners entitled thereto, the
Depositary may in its discretion make such conversion and distribution in
Dollars to the extent permissible to the Owners entitled thereto for whom such
conversion and distribution is practicable and may distribute the balance of the
foreign currency (or an appropriate document evidencing the right to receive
such foreign currency) received by the Depositary or the Custodian to, or hold
such balance uninvested and without liability for the respective accounts of,
the Owners entitled thereto for whom such conversion and distribution is not
practicable.
SECTION 4.06. FIXING OF RECORD DATE. Whenever any cash dividend or
other cash distribution shall become payable or any distribution other than cash
shall be made, or whenever rights shall be issued with respect to the Deposited
Securities, or whenever for any reason there occurs a change in the number or
type of Deposited Securities that are represented by each American Depositary
Share, or whenever the Depositary shall receive notice of any meeting of, or
solicitation of consents or proxies from, holders of Shares or other Deposited
Securities or whenever the Company or the Depositary finds it necessary or
convenient in respect of any matter, the Depositary shall fix a record date
(which, to the extent practicable, shall be the same as any corresponding record
date set by the Company with respect to Shares, and after consultation with the
Company if such date is to be different from any such record date established by
the Company in respect of the Shares) for the determination of the Owners who
shall be entitled to receive such dividend, distribution rights, or the net
proceeds of the sale thereof, or to give instructions for the exercise of voting
rights at any such meeting or in respect of any such solicitation or to receive
information as to any such meeting or solicitation, or for fixing the date on or
after which each American Depositary Share will represent the changed number or
type of Deposited Securities, subject to the terms and conditions of this
Deposit Agreement. If the American Depositary shares shall be listed on any
stock exchange, then any such record date shall be fixed in accordance with any
applicable rules of such stock exchange. The Depositary as promptly as
practicable shall advise the Company and, if the American Depositary Shares
shall be listed on any stock exchange, such stock exchange of any record date so
fixed by the Depositary.
SECTION 4.07. VOTING OF SHARES. Upon receipt of notice of any
meeting of holders of Shares or other Deposited Securities, the Depositary
shall, as soon as practicable thereafter, mail to the Owners (i) a copy or
summary in English of the notice of such meeting sent by the Company to the
Depositary pursuant to Section 5.06, (ii)
-17-
a statement that the Owners as of the close of business on a record date
established by the Depositary pursuant to Section 4.06 will be entitled, subject
to any applicable provisions of French law, the STATUTS of the Company and the
Deposited Securities (which provisions, if any, including any applicable
provisions relating to double voting rights, will be summarized in pertinent
part in such statement), to instruct the Depositary as to the exercise of the
voting rights, if any, pertaining to the Shares or other Deposited Securities
represented by such Owner's American Depositary Shares, (iii) copies or
summaries in English of any materials or other documents provided by the Company
for the purpose of enabling such Owner to give instructions for the exercise of
such voting rights and (iv) a voting instruction card to be prepared by the
Depositary and the Company (a "Voting Instruction Card") and setting forth the
date established by the Depositary for the receipt of such Voting Instruction
Card (the "Receipt Date"). Voting instructions may be given only in respect of a
number of American Depositary Shares representing an integral number of Shares.
In addition, a precondition for exercising any voting rights with respect to any
holders of American Depositary Shares who are not Owners of the Receipts
evidencing such American Depositary Shares on the books of the Depositary is
that such holders arrange for deposit in a blocked account established for such
purpose of the relevant number of American Depositary Shares for a period to
commence on a date to be fixed by the Depositary after consultation with the
Company (which date will not be more than five days prior to the date of the
shareholders' meeting) until the completion of such meeting (the "Blocked
Period"). The Depositary will use its best efforts to implement and maintain
procedures to allow for blocking of American Depositary Shares as contemplated
by the preceding sentence.
In accordance with French companies law and the STATUTS of the
Company, Shares that have been held in registered form in the name of the same
holder since at least the beginning of the second full calendar year preceding
the date of the shareholders, meeting in question are entitled to double voting
rights. Consequently, deposited Shares will be entitled to such double voting
rights to the sole extent that (i) since at least the beginning of the second
full calendar year preceding the date of the shareholder meeting in question the
Depositary, upon the request of the Owners, has held such Shares in registered
form; (ii) such Owners have since at least the same date continuously held
Receipts evidencing American Depositary Shares representing such number of
deposited Shares and (iii) such Owners have certified to the Depositary, as of
the date the Voting Instruction Card is executed, that they are, and at all
times since the beginning of the second full calendar year preceding the date of
the shareholder meeting in question have been, Eligible Owners. For purposes of
determining whether deposited Shares may be entitled to double voting rights,
upon a transfer or surrender of American Depositary Shares by an Owner, unless
otherwise specified by
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such Owner, the Depositary and the Company shall presume that the most recently
acquired American Depositary shares are being transferred or surrendered by such
Owner. Accordingly, the Depositary will use reasonable efforts, as hereinafter
provided, to exercise or cause to be exercised double voting rights in
accordance with instructions received from Owners that have satisfied the
conditions set forth in clauses (i) to (iii) above, in respect of the number of
Shares which are entitled to double voting rights represented by the American
Depositary Shares evidenced by Receipts held by such Owners.
Upon receipt by the Depositary from an Owner of American
Depositary Shares of a properly completed Voting Instruction Card on or before
the Receipt Date, the Depositary will either, in its discretion, (i) use
reasonable efforts, insofar as practical and permitted under any applicable
provisions of French law and the STATUTS of the Company, to vote or cause to be
voted the Shares represented by such American Depositary Shares in accordance
with any non-discretionary instructions set forth in such Voting Instruction
Card or (ii) forward such instructions to the Custodian and the Custodian will
use reasonable efforts, insofar as practical and permitted under any applicable
provisions of French law and the STATUTS of the Company, to vote or cause to be
voted the Shares represented by such American Depositary Shares in accordance
with any nondiscretionary instructions set forth in such Voting Instruction
Card. The Depositary will only vote, or cause to be voted, or attempt to
exercise the right to vote that attaches to, Shares represented by American
Depositary Shares in respect of which a Voting Instruction Card has been
received. In the case of a Voting Instruction Card received in respect of any
holder of American Depositary Shares who is not the Owner of the Receipt
evidencing such American Depositary Shares on the books of the Depositary, the
Depositary will not vote or cause to be voted the number of Shares represented
by such American Depositary Shares unless the Depositary has received
verification that such number of American Depositary Shares has been deposited
in a blocked account for the Blocked Period. The Depositary (i) will not vote,
or cause to be voted, or attempt to exercise the right to vote that attaches to,
Shares represented by American Depositary Shares in respect of which the voting
Instruction Card is improperly completed or in respect of which (and to the
extent) the Voting instructions included in the Voting Instruction Card are
illegible or unclear, and (ii) will, in the case where the Voting Instruction
Card is properly completed except for voting instructions relating to any
resolutions to be submitted to the shareholders' meeting that have been left
blank, vote in favor of such resolutions.
Notwithstanding anything in this Deposit Agreement to the
contrary, the Depositary and the Company may modify, amend or adopt additional
voting procedures from time to time as they determine may
-19-
be necessary or appropriate to comply with French or United States law or the
STATUTS of the Company.
SECTION 4.08. CHANGES AFFECTING DEPOSITED SECURITIES. Upon any
change in nominal value, split-up, consolidation or other reclassification of
Deposited Securities, or upon any recapitalization, reorganization, merger,
consolidation or sale of assets affecting the Company or to which it is a party,
any securities which shall be received by the Depositary or any Custodian in
exchange for, conversion of, replacement or otherwise in respect of Deposited
Securities shall, subject to the terms of this Deposit Agreement and applicable
law, including any applicable provisions of the Securities Act of 1933, be
treated as new Deposited Securities under this Deposit Agreement, and each
American Depositary Share shall, subject to the terms of this Deposit Agreement
and applicable law, including any applicable provisions of the Securities Act of
1933, thenceforth represent an appropriately adjusted proportional interest in
the Deposited Securities so received in exchange or conversion or replacement or
otherwise, unless additional or new Receipts are delivered pursuant to the
following sentence. In any such case the Depositary may, and shall if the
Company shall so request, execute and deliver additional Receipts as in the case
of a stock dividend on the Shares, or call for the surrender of outstanding
Receipts to be exchanged for new Receipts specifically describing such new
Deposited Securities. Upon the occurrence of any change or other event covered
by this Section with respect to the Deposited Securities, the Depositary shall
give notice thereof in writing to all Owners.
SECTION 4.09. REPORTS. At such time as the Company shall become
subject to the periodic reporting requirements of the Securities Exchange Act of
1934, the Company will file certain reports with the Securities and Exchange
Commission required under such Act. Such reports and communications will be
available for inspection and copying at the public reference facilities
maintained by the Commission located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇.
The Depositary shall make available for inspection by Owners at
its Corporate Trust Office copies of this Deposit Agreement and any reports and
communications, including any proxy solicitation material, received from the
Company which are both (a) received by the Depositary as the holder of the
Deposited Securities and (b) made generally available to the holders of such
Deposited Securities by the Company. The Depositary shall also send as promptly
as practicable to the Owners English language versions or summaries in English
of such reports and communications when furnished by the Company pursuant to
Section 5.06.
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SECTION 4.10. LISTS OF OWNERS. As promptly as practicable upon
request by the Company, the Depositary shall furnish the Company with a list, as
of a recent date, of the names, addresses and holdings of American Depositary
Shares by all persons in whose names Receipts are registered on the transfer
books of the Depositary.
SECTION 4.11. WITHHOLDING. In connection with any dividend or
other distribution to Owners, the Company or its agent will remit to the
appropriate governmental authority or agency all amounts (if any) required under
applicable law to be withheld and remitted by the Company or such agent and
owing to such governmental authority or agency by the Company or such agent; and
the Depository and the Custodian will remit to the appropriate governmental
authority or agency all amounts (if any) required under applicable law to be
withheld and remitted by the Depository or the Custodian and owing to such
authority or agency by the Depository or the Custodian. Either the Company or
the Depository may file with any governmental agency any reports necessary to
obtain benefits under any applicable tax treaties for the Owners. The Depository
shall forward to the Company or its agent such information from its records in
relation to withholding from a dividend or other distribution on Deposited
Securities as the Company may reasonably request to enable the Company or its
agent to file necessary reports with governmental authorities or agencies, and
the Company and its agent shall forward to the Depository such information from
its records in relation to withholding from a dividend or other distribution on
Deposited Securities as the Depository may reasonably request to enable the
Depository to file necessary reports with governmental authorities or agencies.
In the event that the Depository determines that any dividend or other
distribution in property other than cash (including Shares and rights to
subscribe therefor) is subject to any tax or other governmental charge which the
Depository is obligated to withhold, the Depository may (after consultation with
the Company) by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Depository deems necessary and practicable to withhold any
such taxes or charges and the Depository shall distribute the net proceeds of
any such sale after deduction of such taxes or charges to the Owners entitled
thereto in proportion to the number of American Depository Shares held by them
respectively, all in accordance with applicable provisions of this Deposit
Agreement.
The Depository agrees to use reasonable efforts to follow the
procedures established, or that may be established, by the French Treasury to
enable eligible United States Owners and beneficial owners of Receipts to
qualify for a reduced withholding tax rate of 15%, if available at the time
dividends are paid, to recover any excess French withholding taxes initially
withheld or deducted with respect to dividends and other distributions to such
Owners and beneficial owners, and to receive any payment in respect of the AVOIR
-21-
FISCAL for which such Owners and beneficial owners may be eligible from the
French Treasury or to receive a refund of any PRECOMPTE paid to the French
Treasury by the Company.
Upon request of any United States Owner of Receipts the Depositary
will provide a copy of Form RF 1A EU no. 5052 or Form RF 1A EU no. 5053, as
applicable, or such other form as may be promulgated from time to time by the
French tax authorities for such purpose, together with instructions to such
Owner and beneficial owners. The Depositary shall promptly arrange for the
filing with the French tax authorities of all such forms completed by United
States beneficial owners of Receipts and returned in sufficient time so that
such forms may be filed by December 31 of the year following the calendar year
in which the related dividend is paid.
SECTION 4.12. DIVIDENDS IN CASH OR SHARES. Whenever the Depositary
shall receive notice from the Company of the declaration of a dividend or other
distribution without payment of any subscription price on Deposited Securities
payable in Shares or cash at the election of each holder of Shares or, if no
such election is made, payable in Shares or in cash as provided in the
instruments governing such dividend or other distribution, the Depositary shall
mail to the Owners a notice, the form of which shall be in the sole discretion
of the Depositary, which shall contain (a) such information as is contained in
the notice received by the Depositary from the Company and (b) a statement that
each of the owners as of the close of business on a specified date will be
entitled, subject to any applicable provisions of French law, the STATUTS of the
Company or the instruments governing such dividend or distribution, to instruct
the Depositary as to the manner in which such owner elects to receive such
dividend or distribution. Upon the written request of an Owner on such record
date, received on or before the date established by the Depositary for such
purpose, the Depositary shall endeavor, in-so-far as practicable to make the
election in accordance with the instructions set forth in such request, and to
distribute cash or Shares, as the case may be, in accordance with the terms of
Section 4.01 or Section 4.03, respectively, to the Owners entitled thereto. If
the Depositary does not receive timely instructions from any Owner as to such
Owner's election, the Depositary shall make no election with respect to the
Deposited Securities represented by such Owner's American Depositary Shares and
shall distribute such Shares or cash as it receives, if any, in respect of such
Deposited Securities in accordance with the preceding sentence.
ARTICLE 5.
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY.
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SECTION 5.01. MAINTENANCE OF OFFICE AND TRANSFER BOOKS BY THE
DEPOSITARY. Until termination of this Deposit Agreement in accordance with its
terms, the Depositary shall maintain in the Borough of Manhattan, The City of
New York, facilities for the execution and delivery, registration, registration
of transfers and surrender of Receipts in accordance with the provisions of this
Deposit Agreement.
The Depositary shall keep books for the registration OF Receipts
and transfers of Receipts which at all reasonable times shall be open for
inspection by the Company and the Owners; PROVIDED, HOWEVER, that such
inspection shall not be for the purpose of communicating with Owners in the
interest of a business or object other than the business of the Company or a
matter related to this Deposit Agreement or the Receipts. The Depositary may
close the transfer books at any time or from time to time when transfer agents
located in The City of New York generally close their transfer books, and at any
other time, following consultation with the Company to the extent practical,
when deemed expedient by the Depositary in connection with the performance of
its duties hereunder or at the request of the Company.
If any Receipts or the American Depositary Shares evidenced
thereby are listed or traded on one or more stock exchanges in the United
States, the Depositary shall act as Registrar or, upon notice to the Company,
appoint a Registrar or, with the prior approval of the Company, one or more
co-registrars for registry of such Receipts in accordance with any requirements
of such exchange or exchanges and to keep books for the registration of Receipts
and transfers of Receipts as provided in this Section 5.01. Such Registrar or
co-registrars may be removed and a substitute or substitutes appointed by the
Depositary, in the case of a Registrar, upon notice to the Company and, in the
case of co-registrars, with the approval of the Company. The Depositary shall
cause each Registrar or co-registrar appointed under this Section 5.01 to give
notice in writing to the Depositary accepting such appointment and agreeing to
be bound by the applicable terms of this Deposit Agreement.
SECTION 5.02. PREVENTION OR DELAY IN PERFORMANCE BY THE DEPOSITARY
OR THE COMPANY. Neither the Depositary nor the Company nor any of their
respective directors, employees, agents or affiliates shall incur any liability
to any owner or beneficial owner of any Receipt, if by reason of any provision
of any present or future law or regulation of the United States or any other
country, or of any governmental or regulatory authority or stock exchange, or by
reason of any provision, present or future, of the STATUTS of the Company, or by
reason of any provision of any securities issued or distributed by the Company,
or any offering or distribution thereof, or by reason of any act of God or war
or other circumstances beyond its control, the Depositary or the Company shall
be prevented,
-23-
delayed or forbidden from, or be subject to any civil or criminal penalty on
account of, doing or performing any act or thing which by the terms of this
Deposit Agreement or Deposited Securities it is provided shall be done or
performed; nor shall the Depositary or the Company or any of their respective
directors, employees, agents or affiliates incur any liability to any Owner or
beneficial owner of any Receipt by reason of any nonperformance or delay, caused
as aforesaid, in the performance of any act or thing which by the terms of this
Deposit Agreement it is provided shall or may be done or performed, or by reason
of any exercise of, or failure to exercise, any discretion provided for in this
Deposit Agreement. Where, by the terms of a dividend or other distribution
pursuant to Section 4.01, 4.02, or 4.03 of the Deposit Agreement, or an offering
or distribution pursuant to Section 4.04 of the Deposit Agreement, or for any
other reason, such dividend or other distribution or offering may not be made
available to owners, and the Depositary may not dispose of such dividend or
other distribution or offering on behalf of such Owners and make the net
proceeds available to such Owners, then the Depositary shall not make such
dividend or other distribution or offering, and shall allow any rights, if
applicable, to lapse.
SECTION 5.03. OBLIGATIONS OF THE DEPOSITARY, THE CUSTODIAN AND THE
COMPANY. Each of the Company and its agents and their respective officers,
directors, employees and affiliates assumes no obligation nor shall it be
subject to any liability under this Deposit Agreement or the Receipts to Owners
or beneficial owners of Receipts, except that it agrees to perform its
obligations specifically set forth in this Deposit Agreement without negligence,
willful misconduct or bad faith.
Each of the Depositary and its agents and their respective
officers, directors, employees and affiliates assumes no obligation nor shall it
be subject to any liability under this Deposit Agreement or the Receipts to any
Owner or beneficial owner of a Receipt (including, without limitation, liability
with respect to the validity or worth of the Deposited Securities), except that
it agrees to perform its obligations specifically set forth in this Deposit
Agreement without negligence, willful misconduct or bad faith.
Without limiting the foregoing, neither the Depositary or its
agents nor the Company or its agents shall be under any obligation to appear in,
prosecute or defend any action, suit or other proceeding in respect of any
Deposited Securities or in respect of the Receipts, which in its opinion may
involve it in expense or liability, unless indemnity satisfactory to it against
all expense and liability shall be furnished as often as may be required, and
the Custodian shall not be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the Depositary.
-24-
None of the Depositary or its agents or the Company or its agents
shall be liable for any action or nonaction by it or them in reliance upon the
advice of or information from legal counsel, accountants, any person presenting
Shares for deposit, any owner or holder of a Receipt or any other person
believed by it in good faith to be competent to give such advice or information.
The Depositary shall not be liable for any acts or omissions made
by a successor depositary whether in connection with a previous act or omission
of the Depositary or in connection with any matter arising wholly after the
removal or resignation of the Depositary, provided that in connection with the
issue out of which such potential liability arises the Depositary performed its
obligations without negligence, willful misconduct or bad faith while it acted
as Depositary.
The Depositary shall not be responsible for the manner in which
any vote of any Deposited Securities is cast or the effect of any such vote,
provided that any such action or nonaction is in good faith and in accordance
with this Deposit Agreement.
No disclaimer of liability under the Securities Act of 1933 is
intended by any provision of this Deposit Agreement.
SECTION 5.04. RESIGNATION AND REMOVAL OF THE DEPOSITARY;
APPOINTMENT OF SUCCESSOR DEPOSITARY. The Depositary may at any time resign as
Depositary hereunder by written notice of its election so to do delivered to the
Company, such resignation to take effect upon the appointment of a successor
depositary and its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by
written notice of such removal effective upon the appointment of a successor
depositary and its acceptance of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign
or be removed, the Company shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, The City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, satisfactory in form and substance
to the Company, and thereupon such successor depositary, without any further act
or deed, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor; however, such predecessor, upon payment of all
sums due to it and on the written request of the Company, shall execute and
deliver an instrument transferring to such successor all rights and powers of
such predecessor hereunder, shall duly assign, transfer and deliver all right,
title and interest in
-25-
the Deposited Securities to such successor, and shall deliver to such successor
all materials necessary and useful to enable the successor depositary to carry
out the responsibilities of the Depositary hereunder, including, but not limited
to, a list of the Owners of all outstanding Receipts. Any such successor
depositary shall promptly mail notice of its appointment to the Owners.
Notwithstanding the foregoing, any resignation or removal and appointment of a
successor Depositary shall not relieve the prior depositary or the Company from
its obligations and liabilities pursuant to Section 5.08.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act, it being understood that the Company
shall be informed in writing of such an event.
SECTION 5.05. THE CUSTODIAN. The Depositary has appointed the
principal Paris office of AXA Banque as Custodian and agent of the Depositary
for the purposes of this Deposit Agreement. The Custodian or its successors,
which shall be an accredited intermediary acting through a specified office
located in France, in acting hereunder shall be subject at all times and in all
respects to the directions of the Depositary and shall be responsible solely to
it. If the Depositary receives notice of the resignation of the Custodian and,
upon the effectiveness of such resignation there would be no Custodian acting
hereunder, the Depositary shall, promptly after receiving such notice, appoint a
substitute custodian or custodians, each of which shall be an accredited
intermediary acting through a specified office located in France, and each of
which shall thereafter be a Custodian hereunder. Whenever the Depositary in its
discretion determines, after consultation with the Company to the extent
practicable, that it is in the best interest of the Owners to do so it may
appoint a substitute or additional custodian or custodians, which shall be an
accredited intermediary acting through a specified office located in France,
each of which shall thereafter be one of the Custodians hereunder. Upon demand
of the Depositary, any Custodian shall transfer such of the Deposited Securities
held by it and all other books and records maintained by it with respect to its
function as a Custodian hereunder as are requested of it to any other Custodian
or such substitute or additional custodian. The Depositary shall cause each
substitute or additional custodian, forthwith upon its appointment, to deliver
to the Depositary and the Company an acceptance of such appointment in form and
substance satisfactory to the Depositary.
Upon the appointment of any successor depositary hereunder, each
Custodian then acting hereunder shall forthwith become, without any further act
or writing, the agent hereunder of such successor depositary and the appointment
of such successor depositary shall in no way impair the authority of any
Custodian hereunder, but the
-26-
successor depositary so appointed shall, nevertheless, on the written request of
any Custodian or as required by French law, execute and deliver to such
Custodian all such instruments as may be proper to give to such Custodian full
and complete power and authority as agent hereunder of such successor
depositary.
SECTION 5.06. NOTICES AND REPORTS. On or before the first date on
which the Company gives notice, by publication or otherwise, of any meeting of
holders of Shares or other Deposited Securities, or of any adjourned meeting of
such holders, or of the taking of any action in respect of any cash or other
distributions or the offering of any rights, the Company agrees to transmit to
the Depositary and the Custodian a copy of the notice thereof in English, but
otherwise in the form given or to be given to holders of Shares or other
Deposited securities.
The Company shall furnish to the Depositary in English annual
reports (including audited consolidated financial statements), semi-annual
reports (including unaudited interim consolidated financial information), and
copies or summaries in English of any other reports and communications that are
made generally available by the Company to holders of Deposited Securities. The
Depositary will arrange for the mailing of copies of such annual and semi-annual
reports and, at the written request of the Company, any other such reports and
copies or summaries to all Owners. The Company will timely provide the
Depositary with such quantity of such reports and summaries as shall be
requested by the Depositary from time to time in order for the Depositary to
effect such mailings.
The Company has delivered to the Depositary and the Custodian a
copy (in English or with an English translation) of the STATUTS of the Company.
Promptly upon any change in such STATUTS, the Company shall deliver promptly to
the Depositary and the Custodian a copy (in English or with an English
translation) of such STATUTS, as so changed. The Depositary and its agents may
rely on the copy of such STATUTS, as so delivered for all purposes of this
Deposit Agreement.
SECTION 5.07. ISSUANCE OR DEPOSIT OF ADDITIONAL SHARES, ETC. The
Company agrees that in the event of any issuance or distribution of (1)
additional Shares, (2) rights to subscribe for Shares, (3) securities
convertible into Shares, or (4) rights to subscribe for such securities (each a
"Distribution"), the Company will promptly furnish to the Depositary a written
opinion from U.S. counsel for the Company, which counsel shall be reasonably
satisfactory to the Depositary, stating whether or not the Distribution requires
a Registration Statement under the Securities Act of 1933 to be in effect prior
to making such Distribution available to Owners entitled thereto. If in the
opinion of such counsel a Registration Statement is required, such counsel shall
furnish to the Depositary a written opinion as to whether or not
-27-
there is a Registration Statement in effect which will cover such Distribution.
The Company agrees with the Depositary that neither the Company
nor any company controlled by the Company will at any time deposit any Shares,
either originally issued or previously issued and reacquired by the Company or
any such company, unless a registration statement is in effect as to such Shares
under the Securities Act of 1933.
Nothing in this Section 5.07 or elsewhere in this Deposit
Agreement shall create any obligation on the part of the Company or the
Depositary to file a registration statement in respect of any such securities or
rights. To the extent the Company in its discretion deems it necessary or
advisable in order to avoid any requirement to register such additional
securities under the Securities Act of 1933, it may prevent Owners in the United
States from purchasing any such additional securities (whether pursuant to
preemptive rights or otherwise) and direct the Depositary not to accept certain
Shares for deposit for such period of time following the issuance of such
additional securities and to adopt such other specific measures as the Company
may reasonably request in writing.
SECTION 5.08. INDEMNIFICATION. The Company agrees to indemnify the
Depositary, its directors and employees, agents and affiliates and any Custodian
against, and hold each of them harmless from, any liability or expense
(including, but not limited to, the reasonable fees and expenses of counsel)
which may arise out of any registration with the Commission of Receipts,
American Depositary Shares or Deposited Securities or the offer or sale thereof
in the United States or out of acts performed or omitted, in accordance with the
provisions of this Deposit Agreement and of the Receipts, as the same may be
amended, modified or supplemented from time to time, (i) by either the
Depositary or a Custodian or their respective directors, employees, agents and
affiliates, except for any liability or expense arising out of the negligence,
willful misconduct or bad faith of any of them, or (ii) by the Company or any of
its directors, employees, agents and affiliates.
The indemnities contained in the preceding paragraph shall not
extend to any liability or expense which may arise out of any Pre-Release (as
defined in Section 2.09) but only to the extent that any such liability or
expense arises in connection with (a) any United States federal, state or local
income tax laws, or (b) the failure of the Depositary to deliver Deposited
Securities when required under the terms of Section 2.05. However, the
indemnities provided in the preceding paragraph shall apply to any such
liability or expense which may arise out of any misstatement or alleged
misstatement or omission or alleged omission in any registration statement,
proxy statement, prospectus (or placement memorandum), or
-28-
preliminary prospectus (or preliminary placement memorandum relating to the
offer of sale of American Depositary Shares, except to the extent any such
liability or expense arises out of (i) information relating to the Depositary or
any Custodian (other than the Company), as applicable, furnished in writing and
not materially changed or altered by the Company expressly for use in any of the
foregoing documents, or, (ii) if such information is provided, the failure to
state a material fact necessary to make the information provided not misleading.
The Depositary agrees to indemnify the Company, its directors,
employees, agents and affiliates against and hold them harmless from any
liability or expense (including but not limited to the reasonable fees and
expenses of counsel) which may arise out of acts performed or omitted by the
Depositary or any Custodian or their respective directors, employees, agents and
affiliates due to their negligence, willful misconduct or bad faith.
If an action, proceeding (including, but not limited to, any
governmental investigation), claim or dispute (collectively, a "Proceeding") in
respect of which indemnity may be sought by either party is brought or asserted
against the other party, the party seeking indemnification (the "Indemnitee")
shall as promptly as practicable notify in writing the party obligated to
provide such indemnification (the "Indemnitor") of such Proceeding. The failure
of the Indemnitee to so notify the Indemnitor shall not impair the Indemnitee's
ability to seek indemnification from the Indemnitor except to the extent that
the Indemnitor is materially prejudiced by such failure. Upon receipt of such
notice from the Indemnitee, the Indemnitor shall be entitled to participate in
such Proceeding and, to the extent that it shall so desire and provided no
conflict of interest exists as specified in subparagraph (b) below, to assume
the defense thereof with counsel reasonably satisfactory to the Indemnitee (in
which case all attorney's fees and expenses shall be borne by the Indemnitor and
the Indemnitor shall in good faith defend the Indemnitee). The Indemnitee shall
have the right to employ separate counsel in any such proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be borne by the Indemnitee unless (a) the Indemnitor agrees in writing to
pay such fees and expenses, (b) the Indemnitee shall have reasonably and in good
faith concluded that there is a conflict of interest between the Indemnitor and
the Indemnitee in the conduct of the defense of such action, including but not
limited to that there may be legal defenses available to the Indemnitee that are
different from or in addition to those available to the Indemnitor, or (c) the
Indemnitor fails, within ten (10) days prior to the date the first response or
appearance is required to be made in such Proceeding, to assume the defense of
such Proceeding with counsel reasonable satisfactory to the Indemnitee. No
compromise or settlement of such Proceeding may be effected by either party
without
-29-
the other party's consent unless (i) there is no finding or admission of any
violation of law and no material adverse effect on any other claims that may be
made against such other party and (ii) the sole relief provided is monetary
damages that are paid in full by the party seeking the compromise or settlement.
Neither party shall have any liability with respect to any compromise or
settlement effected without its consent, which shall not be unreasonably
withheld. The Indemnitor shall have no obligation to indemnify and hold harmless
the Indemnitee from any loss, expense or liability incurred by the Indemnitee as
a result of a default judgment entered against the Indemnitee unless such
judgment was entered after the Indemnitor agreed, in writing, to assume the
defense of such Proceeding.
The obligations set forth in this Section 5.08 shall survive the
termination of this Deposit Agreement and the succession or substitution of any
indemnified person.
SECTION 5.09. CHARGES OF DEPOSITARY. The Company will not pay any
fees, expenses or other charges of the Depositary or of any Registrar except in
accordance with express agreements in writing entered into between the
Depositary and the Company from time to time. The Depositary shall present its
statement duly itemized for such charges and expenses to the Company once every
three months. The fees, charges and expenses of the Custodian are for the sole
account of the Depositary.
The following charges, to the extent permitted by applicable law
or the rules of any securities exchange on which the American Depositary Shares
are listed or traded, shall be incurred by any party depositing or withdrawing
Shares or by any party surrendering Receipts or to whom Receipts are issued
(including, without limitation, issuance pursuant to a stock dividend or stock
split declared by the Company or an exchange of stock regarding the Receipts or
Deposited securities or a distribution of Receipts pursuant to Section 4.03),
whichever applicable: (1) taxes and other governmental charges, (2) such
registration fees as may from time to time be in effect for the registration of
transfers or exchanges of Shares generally on the Share register of the Company
or, if applicable, its agent and applicable to transfers or exchanges of Shares
to or from the name of the Depositary or its nominee or the Custodian or its
nominee on the making of deposits or withdrawals hereunder, (3) such air
courier, cable, telex and facsimile transmission expenses as are expressly
provided in this Deposit Agreement, (4) such reasonable expenses as are incurred
by the Depositary in the conversion of foreign currency pursuant to Section
4.05, (5) a fee of $5.00 or less per 100 American Depositary Shares (or portion
thereof) for the execution and delivery of Receipts pursuant to Section 2.03,
4.03 or 4.04 and the surrender of Receipts pursuant to Section 2.05 or 6.02, (6)
a fee of $.02 or less per American Depositary Share (or portion thereof) for any
cash
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distribution made pursuant to the Deposit Agreement, except in the case of a
cash dividend or other cash distribution received from the Company on any
deposited Shares and (7) a fee for the distribution of securities pursuant to
Section 4.02, such fee being in an amount equal to the fee for the execution and
delivery of American Depositary Shares referred to above which would have been
charged as a result of the deposit of such securities (for purposes of this
clause 7 treating all such securities as if they were Shares) but which
securities are instead distributed by the Depositary to Owners.
The Depositary, subject to compliance with all applicable laws,
rules and regulations and subject to Section 2.09 hereof, may own and deal in
any class of securities of the Company and its affiliates and in Receipts.
SECTION 5.10. RETENTION OF DEPOSITARY DOCUMENTS. The Depositary is
authorized to destroy those documents, records, bills and other data compiled
during the term of this Deposit Agreement at the times permitted by the laws or
regulations governing the Depositary unless the Company requests that such
papers be turned over to the Company or to a successor depositary.
SECTION 5.11. EXCLUSIVITY. Subject to the provisions of Section
5.04, the Company agrees not to appoint any other depositary for issuance of
depositary receipts so long as The Bank of New York is acting as Depositary
hereunder.
ARTICLE 6.
AMENDMENT AND TERMINATION.
SECTION 6.01. AMENDMENT. The form of the Receipts and any
provisions of this Deposit Agreement may at any time and from time to time be
amended by agreement in writing between the Company and the Depositary in any
respect which they may deem necessary or desirable. Any amendment which shall
impose or increase any fees or charges (other than taxes and other governmental
charges, registration fees, cable, telex or facsimile transmission costs,
delivery costs or other such expenses), or which shall otherwise prejudice any
substantial existing right of Owners, shall, however, not become effective as to
outstanding Receipts until the expiration of 90 days after written notice of
such amendment shall have been mailed to the Owners of outstanding Receipts.
Every Owner at the time any amendment so becomes effective shall be deemed, by
continuing to hold such Receipt, to consent and agree to such amendment and to
be bound by the Deposit Agreement as amended thereby. In no event shall any
amendment impair the right of the Owner of any Receipt to surrender such Receipt
and receive therefor the Deposited Securities
-31-
represented thereby, except to comply with mandatory provisions of applicable
law.
SECTION 6.02. TERMINATION. The Depositary shall at any time at the
direction of the Company terminate this Deposit Agreement by mailing notices of
such termination to the Owners of all Receipts then outstanding at least 30 days
prior to the date fixed in such notice for such termination. The Depositary may
likewise terminate this Deposit Agreement (upon 30 days' prior written notice of
such termination to the Company and the Owners of all Receipts then outstanding)
if at any time 90 days after the Depositary shall have delivered to the Company
a written notice of its resignation sent by registered mail, a successor
depositary shall not have been appointed and accepted its appointment as
provided in Section 5.04. The Depositary shall mail notice of such termination
to the Owners of all Receipts then outstanding at least 30 days prior to the
date fixed in such notice for such termination. On and after the date of
termination, each Owner shall, upon (i) surrender of each of its Receipts at the
Depositary's Corporate Trust Office, (ii) payment of the fees of the Depositary
for the surrender of Receipts provided herein and (iii) payment of any
applicable taxes and governmental charges, be entitled to delivery, to him or
upon his order, of the whole number of Deposited securities represented by the
American Depositary Shares evidenced by such Receipts and to the net proceeds of
the sale of any fractional Deposited Securities represented thereby. If any
Receipts shall remain outstanding after the date of termination, the Depositary
thereafter shall discontinue the registration of transfers of Receipts, shall
suspend the distribution of dividends to the Owners thereof, and shall not give
any further notices or perform any further acts under this Deposit Agreement,
except that the Depositary shall continue to collect dividends and other
distributions pertaining to Deposited Securities, shall sell rights as provided
in this Deposit Agreement, and shall continue to deliver Deposited Securities,
together with any dividends or other distributions received with respect thereto
and the net proceeds of the sale of any rights or other property, in exchange
for Receipts surrendered to the Depositary (after deducting, in EACH case, the
fee of the Depositary for the surrender of a Receipt, any expenses for the
account of the owner of such Receipt in accordance with the terms and conditions
of this Deposit Agreement, and any applicable taxes or governmental charges).
At any time after the expiration of one year from the date of
termination, the Depositary may sell the Deposited Securities then held
hereunder and may thereafter hold uninvested the net proceeds of any such sale,
together with any other cash then held by it hereunder, unsegregated and without
liability for interest, for the pro rata benefit of the owners which have not
theretofore surrendered their Receipts, such Owners thereupon becoming general
creditors of the Depositary with respect to such net proceeds. After making such
-32-
sale, the Depositary shall be discharged from all obligations under this Deposit
Agreement, except to account for such net proceeds and other cash (after
deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Owner of such Receipt in accordance
with the terms and conditions of this Deposit Agreement, and any applicable
taxes or governmental charges) and except for its obligations under Section 5.08
hereof. Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary under Sections 5.08 and 5.09 hereof.
ARTICLE 7.
MISCELLANEOUS.
SECTION 7.01. COUNTERPARTS. This Deposit Agreement may be executed
in any number of counterparts, each of which shall be deemed an original, and
all of such counterparts shall constitute one and the same instrument. Copies of
this Deposit Agreement shall be filed with the Depositary and the Custodian and
shall be open to inspection by any Owner during business hours.
SECTION 7.02. NO THIRD PARTY BENEFICIARIES. This Deposit Agreement
is for the exclusive benefit of the parties hereto and shall not be deemed to
give any legal or equitable right, remedy or claim whatsoever to any other
person.
SECTION 7.03. SEVERABILITY. In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
SECTION 7.04. OWNERS AND HOLDERS AS PARTIES; BINDING EFFECT. The
Owners and holders of Receipts from time to time shall be parties to this
Deposit Agreement and shall be bound by all of the terms and conditions hereof
and of the Receipts by acceptance thereof.
SECTION 7.05. NOTICES. Any and all notices to be given to the
Company shall be deemed to have been duly given if personally delivered or sent
by air courier or facsimile transmission confirmed by letter addressed to AXA at
▇▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇, Attention: Head of Central Legal
Department or any other place of which the Company has notified the Depositary.
Any and all notices to be given to the Depositary shall be deemed
to have been duly given if personally delivered or sent by air
-33-
courier or facsimile transmission confirmed by letter, addressed to The Bank of
New York at its Corporate Trust Office located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ADR Department, 22 West, or any other place to which
the Depositary has moved its Corporate Trust Office. The Depositary will give
notice to the Company and the Owners of any change in the location of its
Corporate Trust Office.
Any and all notices to be given to any Owner shall be deemed to
have been duly given if personally delivered or sent by mail or by cable, telex
or facsimile transmission confirmed by letter, addressed to such Owner at the
address of such Owner as it appears on the transfer books for Receipts of the
Depositary, or, if such Owner shall have filed with the Depositary a written
request that notices intended for such Owner be mailed to some other address, at
the address designated in such request.
Delivery of a notice sent by mail (other than registered mail) or
by cable, telex or facsimile transmission shall be deemed to be effected at the
time when a duly addressed letter containing the same (or a confirmation thereof
in the case of a cable, telex or facsimile transmission) is deposited, postage
prepaid, in a post office letter box. Notices sent by registered mail or
personally delivered will be deemed to have been duly given on the date on which
signed for on behalf of the addressee. The Depositary or the Company may,
however, act upon any cable, telex or facsimile transmission received by it from
the other or from any Owner, notwithstanding that such cable, telex or facsimile
transmission shall not subsequently be confirmed by letter as aforesaid.
SECTION 7.06. GOVERNING LAW. This Deposit Agreement and the
Receipts shall be interpreted and all rights hereunder and thereunder and
provisions hereof and thereof shall be governed by the laws of the State of New
York. It is understood that, notwithstanding any present or future provision of
the laws of the State of New York, the rights of holders of Shares and other
Deposited Securities and the obligations and duties of the Company in respect of
such holders, as such, shall be governed by the laws of The Republic of France
(or, if applicable, such other law as may govern Deposited Securities).
SECTION 7.07. COMPLIANCE WITH U.S. SECURITIES LAW. Notwithstanding
anything in this Deposit Agreement to the contrary, the Company and the
Depositary each agrees that it will not exercise any rights it has under this
Deposit Agreement to prevent the withdrawal or delivery of Deposited Securities
in a manner which would violate United states securities laws, including but not
limited to Section I A(1) of the General Instructions to the Registration
Statement on Form F-6, as amended from time to time, under the Securities Act of
1933.
-34-
IN WITNESS WHEREOF, AXA and THE BANK OF NEW YORK have duly
executed this agreement as of the day and year first set forth above and all
Owners and holders of Receipts shall become parties hereto upon acceptance by
them of Receipts issued in accordance with the terms hereof.
AXA
By:
----------------------------
Name:
Title:
THE BANK OF NEW YORK
By:
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
-35-
EXHIBIT A
AMERICAN DEPOSITARY SHARES
(Each American Depositary
Share represents one-half of one
deposited Share)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR ORDINARY SHARES OF
60 FRANCS EACH OF
AXA
(INCORPORATED UNDER THE LAWS OF THE REPUBLIC OF FRANCE)
The Bank of New York, as depositary (hereinafter called
the "Depositary"), hereby certifies
that ___________________________________________________________________________
_____________________________________________________, or registered assigns, IS
THE OWNER OF ___________________________________________________________________
_____________________________.
AMERICAN DEPOSITARY SHARES
representing deposited Ordinary Shares of 60 francs each (herein called
"Shares") of AXA, a SOCIETE ANONYME organized under the laws of The Republic of
France (herein called the "Company"). At the date hereof, each American
Depositary Share represents one-half (1/2) of a Share deposited or subject to
deposit under the Deposit Agreement (as such term is hereinafter defined) at the
principal Paris office of AXA Banque (herein called the "Custodian") or with the
Depositary. The Depositary's Corporate Trust office is located at a different
address than its principal executive office. Its Corporate Trust Office is
located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇, and its principal executive
office is located at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
(1) THE DEPOSIT AGREEMENT. This American Depositary Receipt is
one of an issue (the "Receipts"), all issued and to be issued upon the terms and
conditions set forth in the Deposit Agreement, dated as of June 24, 1996, as it
may be amended from time to time (the "Deposit Agreement"), among the Company,
the Depositary and all holders from time to time in whose name a Receipt is
registered on the books of the Depositary ("Owners"), each of whom by accepting
a Receipt agrees to become a party thereto and becomes bound by all the terms
and provisions thereof and hereof. The Deposit Agreement sets forth the rights
and obligations of Owners of Receipts and the rights and duties of the
Depositary in respect of the Shares deposited thereunder and any and all other
securities, property and cash from time to time received in respect thereof and
held under the Deposit Agreement (such Shares, securities, property and cash are
herein called the "Deposited Securities"). Copies of the Deposit Agreement are
on file at the Corporate Trust Office of the Depositary in The City of New York
and the office of the Custodian and at any other designated transfer offices.
The statements made on the face and the reverse of this Receipt are summaries of
certain provisions of the Deposit Agreement and are qualified by and subject to
the detailed provisions thereof, to which reference is hereby made. Capitalized
terms not defined herein shall have the meanings set forth in the Deposit
Agreement.
The Depositary makes no representation or warranty as to the
validity or worth of the Deposited Securities.
(2) SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES. Upon
surrender at the Corporate Trust Office of the Depositary of this Receipt for
the purpose of withdrawal of the Deposited Securities represented hereby, and
upon payment of the fee of the Depositary for the cancellation of Receipts
provided for in para graph (9) of this Receipt, and subject to the terms and
conditions of the Deposit Agreement, the Company's STATUTS and the Deposited
Securities, the Owner hereof is entitled to the delivery of the whole number of
Shares and the number of any other Deposited Securities represented by the
American Depositary Shares evidenced hereby to an account designated by such
Owner and to delivery at the Corporate Trust Office of the Depositary of a new
Receipt evidencing any fractional Deposited Securities represented hereby. Such
delivery will be made without unreasonable delay. A Receipt surrendered for such
purposes may be required by the Depositary to be properly endorsed in blank or
accompanied by proper instruments of transfer in blank, and if the Depositary
requires, the Owner thereof shall execute and deliver to the Depositary a
written order directing the Depositary to cause the Deposited
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Securities being withdrawn to be delivered to an account designated by such
Owner.
At the request, risk and expense of any Owner so surrendering
a Receipt, and for the account of such Owner, the Depositary shall direct the
Custodian to forward proper documents of title (if available) for any such
Deposited Securities to the Depositary for delivery at the Corporate Trust
office of the Depositary. Such direction shall be given by mail or, at the
request, risk and expense of such Owner, by air courier, cable, telex or
facsimile transmission.
(3) TRANSFER OF RECEIPTS; COMBINATION AND SPLIT-UP OF
RECEIPTS. Subject to the terms and conditions of the Deposit Agreement, the
transfer of this Receipt is registrable on the books of the Depositary upon
surrender by the Owner hereof, in person or by duly authorized attorney, at any
designated transfer office, of this Receipt properly endorsed or accompanied by
proper instruments of transfer and duly stamped as may be required by the laws
of the State of New York and of the United States of America. Subject to the
terms and conditions of the Deposit Agreement, this Receipt may be split into
other Receipts or may be combined with other Receipts into one Receipt
evidencing the same aggregate number of American Depositary Shares as were
evidenced by the Receipt or Receipts surrendered.
As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination or surrender of any Receipt, the
delivery of any distribution thereon or the withdrawal of any Deposited
Securities, the Depositary or the Custodian may require payment from the
presenter of the Receipt or the depositor of the Shares of a sum sufficient to
reimburse it for any tax or other governmental charges and any stock transfer,
registration or conversion fee with respect thereto (including any such tax or
charges and fee with respect to Shares being deposited or Deposited Securities
being withdrawn) and payment of any applicable fee as provided in paragraph (9)
of this Receipt, may require the production of proof satisfactory to it as to
the identity and genuineness of any signature and may also require compliance
with such regulations, if any, as the Depositary may establish consistent with
the provisions of the Deposit Agreement or this Receipt, including, without
limitation, paragraph (25) of this Receipt.
The delivery of Receipts against deposits of Shares generally
or against deposits of particular Shares may be suspended and the transfer of
Receipts in particular instances may be refused or the registration of transfer
of outstanding
A-3
Receipts generally may be suspended during any period when the transfer books of
the Depositary are closed, or if any such action is deemed necessary or
advisable by the Depositary, after consultation with the Company to the extent
practicable (to the extent it is not practicable for the Depositary to consult
with the Company, the Depositary will notify the Company as promptly as
practicable after taking such action and explain its reasons for doing so), or
the Company at any time or from time to time because of any requirement of law
or of any government or governmental or regulatory body or commission, or under
any provision of the Deposit Agreement, or for any reason subject to paragraph
(25) hereof. The surrender of outstanding Receipts and withdrawal of Deposited
Securities may not be suspended subject only to (i) temporary delays caused by
closing the transfer books of the Depositary or the Company or the deposit of
Shares in connection with voting at a shareholders' meeting or the payment of
dividends, (ii) the payment of fees, taxes and similar charges and (iii)
compliance with any U.S. or foreign laws or governmental regulations relating to
the Receipts or the withdrawal of the Deposited Securities.
(4) PROVIDING PROOFS, CERTIFICATES, AND OTHER INFORMATION. Any
person presenting Shares for deposit or any Owner may be required from time to
time to provide such proof of (a) citizenship, residence, exchange control
approval or payment of taxes and other governmental charges and (b) the identity
of any person legally or beneficially interested in the Receipt and the nature
of such interest, such information relating to the registration of the Shares
presented for deposit on the books of the Company (or the appointed agent of the
Company for transfer and registration of Shares) or to provide such other
information, to execute such certificates and to make such representations and
warranties, as the Depositary may deem necessary or proper or as the company
reasonably may require by written request to the Depositary or any Custodian.
The Depositary may withhold the delivery or registration of transfer of any
Receipt, the distribution of any dividend or other distribution or sale of
rights or of the proceeds thereof, or the delivery of any Deposited Securities
until such proof or other information is provided, such certificates are
executed or such representations and warranties are made pertaining to such
Receipt.
(5) LIABILITY OF OWNER FOR TAXES. If any tax or other
governmental charge shall become payable with respect to this Receipt or any
Deposited Securities represented by this Receipt, such tax or other governmental
charge shall be payable by the Owner hereof to the Depositary. The Depositary
may refuse to effect registration of transfer of all or part of
A-4
this Receipt or any withdrawal of Deposited Securities represented by this
Receipt until such payment is made, and may withhold any dividends or other
distributions or, after attempting by reasonable means to notify such Owner, may
sell for the account of the Owner hereof any part or all of the Deposited
Securities evidenced by this Receipt, and may apply such dividends or other
distributions or the proceeds of any such sale to payment of such tax or other
governmental charge, the Owner hereof remaining liable for any deficiency.
(6) WARRANTIES ON DEPOSIT OF SHARES. Every person depositing
Shares under the Deposit Agreement, including every person depositing Shares on
behalf of an owner of Shares, shall be deemed thereby to represent and warrant
that such Shares are validly issued, fully paid and non-assessable and that the
person making such deposit is duly authorized so to do. Every such person,
including every person depositing Shares on behalf of an owner of Shares, shall
also be deemed to represent that such Shares are not Restricted Securities. Such
representations and warranties shall survive the deposit of such shares and
issuance of Receipts in respect thereof.
(7) COMPLIANCE WITH LAW. The rights of each Owner will be
subject to the STATUTS of the Company as if such Owner were a holder of Shares
and to all applicable provisions of French law and the STATUTS of the Company
with regard to notification to the Company and any governmental or stock
exchange authorities of such Owner's interest in Shares. Failure by such Owner
to provide on a timely basis any such required notification of such Owner's
interest in Shares may result in the withholding of certain rights in respect of
such Owner's American Depositary Shares including, without limitation, the right
to give voting instructions in respect of the Shares represented by such
American Depositary Shares.
(8) DISCLOSURE OF BENEFICIAL OWNERSHIP OF RECEIPTS. The
Company and the Depositary may from time to time request Owners to provide
information as to the capacity in which they hold Receipts and regarding the
identity of any other persons then interested in such Receipts and various other
matters.
(9) CHARGES OF DEPOSITARY. The following charges, to the
extent permitted by applicable law or the rules of any securities exchange on
which the American Depositary Shares are listed or traded, shall be incurred by
any party depositing or withdrawing Shares or by any party surrendering Receipts
or to whom Receipts are issued (including, without limitation, issuance pursuant
to a stock dividend or stock split declared by the Company or an exchange of
stock regarding the Receipts or Deposited Securities or a distribution of
Receipts pursuant
A-5
to Section 4.03 of the Deposit Agreement), whichever applicable: (1) taxes and
other governmental charges, (2) such registration fees as may from time to time
be in effect for the registration of transfers or exchanges of Shares generally
on the Share register of the Company or, if applicable, its agent and applicable
to transfers or exchanges of Shares to or from the name of the Depositary or its
nominee or the Custodian or its nominee on the making of deposits or
withdrawals, (3) such air courier, cable, telex and facsimile transmission
expenses as are expressly provided in the Deposit Agreement, (4) such reasonable
expenses as are incurred by the Depositary in the conversion of foreign currency
pursuant to Section 4.05 of the Deposit Agreement, (5) a fee of $5.00 or less
per 100 American Depositary Shares (or portion thereof) for the execution and
delivery of Receipts pursuant to Section 2.03, 4.03 or 4.04 of the Deposit
Agreement and the surrender of Receipts pursuant to Section 2.05 or 6.02 of the
Deposit Agreement, (6) a fee of $.02 or less per American Depositary Share (or
portion thereof) for any cash distribution made pursuant to the Deposit
Agreement, except in the case of a cash dividend or other cash distribution
received from the Company on any deposited Shares and (7) a fee for the
distribution of securities pursuant to Section 4.02 of the Deposit Agreement,
such fee being in an amount equal to the fee for the execution and delivery of
American Depositary Shares referred to above which would have been charged as a
result of the deposit of such securities (for purposes of this clause 7 treating
all such securities as if they were Shares) but which securities are instead
distributed by the Depositary to Owners.
(10) PRE-RELEASE OF RECEIPTS. Unless requested in writing by
the Company to cease doing so, the Depositary may, notwithstanding Section 2.03
of the Deposit Agreement, execute and deliver Receipts prior to the receipt of
Shares pursuant to Section 2.02 of the Deposit Agreement (a "Pre-Release"). The
Depositary may, pursuant to Section 2.05 of the Deposit Agreement, deliver
Shares upon the receipt and cancellation of Receipts which have been
Pre-Released, whether or not such cancellation is prior to the termination of
such Pre-Release or the Depositary knows that such Receipt has been
Pre-Released. The Depositary may receive Receipts in lieu of shares in
satisfaction of a Pre- Release. Each Pre-Release will be (a) preceded or
accompanied by a written representation from the person to whom Receipts or
Shares are to be delivered (a "Pre-Releasee"), that such Pre- Releasee, or its
customer, (i) as of the time of such transaction, owns the Shares or Receipts to
be remitted, as the case may be, (ii) assigns all beneficial right, title and
interest in such Shares or Receipts, as the case may be, to the Depositary in
its capacity as such and for the benefit of the Owners, and (iii) will not take
any action
A-6
with respect to such Shares or Receipts, as the case may be, that is
inconsistent with the transfer of beneficial ownership (including, without the
consent of the Depositary, disposing of such Shares or Receipts, as the case may
be), other than in satisfaction of such Pre-Release, (b) at all times fully
collaterized with cash, U.S. government securities or such other collateral as
the Depositary determines, in good faith, will provide substantially similar
liquidity and security, (c) terminable by the Depositary on not more than five
(5) business days notice, and (d) subject to such further indemnities and credit
regulations as the Depositary deems appropriate. The number of American
Depositary Shares which are outstanding at any time as a result of Pre-Release
will not normally exceed thirty percent (30%) of the Shares deposited under the
Deposit Agreement; PROVIDED, HOWEVER, that the Depositary reserves the right to
change or disregard such limit from time to time as it deems appropriate. The
Depositary will also set dollar limits with respect to Pre-Release transactions
to be entered into under the Deposit Agreement with any particular Pre-Releasee
on a case-by-case basis as the Depositary deems appropriate. For purposes of
enabling the Depositary to fulfill its obligations to the Owners under the
Deposit Agreement, the collateral referred to in clause (b) above shall be held
by the Depositary as security for the performance of the Pre-Releasee's
obligations to the Depositary in connection with a Pre-Release transaction,
including the Pre- Releasee's obligation to deliver Shares or Receipts upon
termination of a Pre-Release transaction (and shall not, for the avoidance of
doubt, constitute Deposited Securities under the Deposit Agreement). The
Depositary may retain for its own account any compensation received by it in
connection with the foregoing.
(11) TITLE TO RECEIPTS. It is a condition of this Receipt, and
every successive Owner hereof by accepting or holding the same consents and
agrees, that title to this Receipt (and to the American Depositary Shares
evidenced hereby), when properly endorsed or accompanied by proper instruments
of transfer, is transferable by delivery with the same effect as in the case of
a negotiable instrument under the laws of the State of New York; PROVIDED,
HOWEVER, that the Depositary, notwithstanding any notice to the contrary, may
treat the Owner of this Receipt as the absolute owner hereof for the purpose of
determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in the Deposit Agreement and for all
other purposes, and neither the Depositary nor the Company shall have any
obligation or be subject to any liability under the Deposit Agreement to any
holder of this Receipt unless such holder is the Owner hereof.
A-7
(12) VALIDITY OF RECEIPT. This Receipt shall not be entitled
to any benefits under the Deposit Agreement or be valid or enforceable for any
purpose, unless this Receipt has been executed by the Depositary by the manual
signature of a duly authorized signatory of the Depositary; PROVIDED, HOWEVER,
that such signature may be a facsimile if a Registrar for the Receipts shall
have been appointed and the Receipt has been countersigned by the manual
signature of a duly authorized officer of the Registrar.
THE BANK OF NEW YORK,
Dated: as Depositary
Countersigned:
By: By:
--------------------------- --------------------------
Authorized Signatory Authorized Signatory
The address of the Corporate Trust Office of the Depositary is
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
The address of the Custodian is AXA Banque at ▇-▇ ▇▇▇ ▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇.
A-8
[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(13) DIVIDENDS AND DISTRIBUTIONS. Whenever the Depositary or
Custodian shall receive any cash dividend or other cash distribution on any
Deposited Securities, the Depositary will, after any necessary conversion of
such distribution into Dollars pursuant to Section 4.05 of the Deposit Agreement
and after fixing a record date pursuant to Section 4.06 of the Deposit
Agreement, as promptly as practicable distribute the amount thus received to the
owners of Receipts entitled thereto in proportion to the number of American
Depositary Shares held by them respectively; PROVIDED, HOWEVER, that the
Depositary shall make appropriate adjustments in the amounts so distributed in
respect of any amounts withheld or requested to be withheld by the Company, the
Custodian or the Depositary from any such distribution on account of (i) taxes
or other governmental charges including, but not limited to, withholding taxes
referred to in Section 4.11 of the Deposit Agreement, or (ii) reasonable
expenses of the Depositary in the conversion of foreign currency into Dollars
pursuant to Section 4.05 of the Deposit Agreement and any other charges of the
Depositary pursuant to Section 5.09 of the Deposit Agreement.
Subject to the provisions of Sections 4.11 and 5.09 of the
Deposit Agreement, whenever the Depositary or the Custodian shall receive any
distribution other than cash, shares or rights upon any Deposited Securities,
the Depositary shall cause the securities or property received by it to be
distributed to the Owners, as of the record date fixed pursuant to Section 4.06
of the Deposit Agreement, of Receipts entitled thereto in proportion to the
number of American Depositary Shares held by them as of such date in any manner
that the Depositary may reasonably deem equitable and practicable for
accomplishing such distribution; PROVIDED, HOWEVER, that if in the opinion of
the Depositary such distribution cannot be made proportionally among such
Owners, or if for any other reason (including but not limited to any requirement
that the Company or the Depositary withhold an amount on account of taxes or
other governmental charges or that such securities must be registered under the
Securities Act of 1933 in order to be distributed to Owners) the Depositary
deems such distribution not to be feasible, the Depositary may adopt such method
as it may deem equitable and practicable for the purpose of effecting such
distribution, including (after consultation with the Company) the public or
private sale of the securities or other property thus received, or any part
thereof, and the net
A-9
proceeds of any such sale (net of the fees and expenses of the Depositary as
provided in Section 5.09 of the Deposit Agreement) shall as promptly as
practicable be distributed by the Depositary to the Owners entitled thereto as
in the case of a distribution received in cash, subject to the provisions of the
Deposit Agreement.
If any distribution upon any Deposited Securities consists of
a dividend in, or distribution without payment of any subscription price of,
Shares, including pursuant to any program under which holders of Deposited
Securities may elect to receive cash or Shares, the Depositary may execute and
deliver additional Receipts evidencing American Depositary Shares representing
the amount of Shares received as such dividend or distribution and distribute to
the Owners, as of the record date fixed pursuant to Section 4.06 of the Deposit
Agreement, of Receipts entitled thereto in proportion to the number of American
Depositary Shares held by them as of such date, Receipts evidencing additional
American Depositary Shares, subject to the terms and conditions of the Deposit
Agreement with respect to the deposit of Shares and the issuance of Receipts,
including the withholding of any tax or other governmental charge as provided in
Section 4.11 of the Deposit Agreement and the payment of fees of the Depositary
as provided in Section 5.09 of the Deposit Agreement. The Depositary may
withhold any such distribution if it has not received adequate assurances from
the Company that such distribution does not require registration under the
Securities Act of 1933. In any case involving fractional American Depositary
Shares, the Depositary shall sell the amount of Shares representing the
aggregate of such fractions and distribute the net proceeds, all in the manner
and subject to the conditions described in Section 4.01 of the Deposit Agreement
or take such other action with the approval of the Company as may be
appropriate. If additional American Depositary Shares are not so distributed,
each American Depositary Share shall thenceforth also represent the additional
Shares distributed with respect to the Deposited Securities represented thereby.
Whenever the Depositary shall receive notice from the Company
of the declaration of a dividend or other distribution without payment of any
subscription price on Deposited Securities payable in Shares or cash at the
election of each holder of Shares or, if no such election is made, payable in
Shares or in cash as provided in the instruments governing such dividend or
other distribution, the Depositary shall mail to the Owners a notice, the form
of which shall be in the sole discretion of the Depositary, which shall contain
(a) such information as is contained in the notice received by the
A-10
Depositary from the Company and (b) a statement that each of the Owners as of
the close of business on a specified date will be entitled, subject to any
applicable provisions of French law, the STATUTS of the Company or the
instruments governing such dividend or distribution, to instruct the Depositary
as to the manner in which such Owner elects to receive such dividend or
distribution. Upon the written request of an Owner on such record date, received
on or before the date established by the Depositary for such purpose, the
Depositary shall endeavor, in so far as practicable, to make the election in
accordance with the instructions set forth in such request, and to distribute
cash or Shares, as the case may be, in accordance with the terms of Section 4.01
or Section 4.03 of the Deposit Agreement, respectively, to the Owners entitled
thereto. If the Depositary does not receive timely instructions from any Owner
as to such Owner's election, the Depositary shall make no election with respect
to the Deposited Securities represented by such Owner's American Depositary
Shares and shall distribute such Shares or cash as it receives, if any, in
respect of such Deposited Securities in accordance with the preceding sentence.
(14) RIGHTS. In the event that the Company shall offer or
cause to be offered to the holders of any Deposited Securities any rights to
subscribe for additional Shares or any rights of any other nature, the
Depositary (after consultation with the Company) shall have discretion as to the
procedure to be followed in making such rights available to any Owners,
including the distribution of warrants or other instruments therefor in such
form as it deems appropriate, or in disposing of such rights on behalf of any
Owners and distributing the net proceeds in Dollars to such Owners. If, by the
terms of such rights offering or for any other reason, the Depositary may not
either make such rights available to any Owners or dispose of such rights and
distribute the net proceeds to such Owners, then the Depositary shall allow the
rights to lapse. If at the time of the offering of any rights the Depositary
determines in its discretion that it is lawful and feasible to make such rights
available to certain Owners but not to other Owners, (i) the Depositary shall
distribute to every Owner with respect to whom it determines the distribution to
be lawful and feasible, in proportion to the number of American Depositary
Shares held by such Owner, warrants or other instruments therefor in such form
as it deems appropriate and (ii) in respect of Owners to whom the Depositary
determines the distribution not to be lawful or feasible, the Depositary shall
use reasonable efforts to sell the rights, warrants or other instruments in
proportion to the number of American Depositary Shares held by such Owners and
distribute the net proceeds of such sales (net of the fees of the Depositary as
provided in section 5.09 of the Deposit Agreement and all taxes and governmental
charges payable in
A-11
connection with such rights and subject to the terms and conditions of the
Deposit Agreement) to such Owners upon an averaged or other fair and practicable
basis without regard to any distinctions among such Owners resulting from
exchange restrictions, the date of delivery of any Receipt or otherwise. In the
event that rights and the securities to which such rights relate are not
registered under the Securities Act of 1933, the Depositary shall not be
responsible for any failure to determine that it may be lawful or feasible to
make such rights available to Owners in general or to any Owner in particular.
In circumstances in which rights would not otherwise be
distributed, if an Owner requests the distribution of warrants or other
instruments in order to exercise the rights allocable in respect of American
Depositary Shares of such Owner hereunder, the Depositary will make such rights
available to such Owner upon written notice from the Company to the~Depositary
that (a) the Company has elected in its sole discretion to permit such rights to
be exercised and (b) the Owner has executed such documents as the Company has
determined in its sole discretion are reasonably required under applicable law.
Upon instruction pursuant to such warrants or other instruments to the
Depositary from such owner to exercise such rights, upon payment by such Owner
to the Depositary for the account of such Owner of an amount equal to the
purchase price of the Shares or other securities to be received upon the
exercise of the rights, and upon payment of the fees of the Depositary as set
forth in such warrants or other instruments, the Depositary shall, on behalf of
such Owner, exercise the rights and purchase such Shares or other securities and
the Company shall cause the Shares or other securities so purchased to be
delivered to the Depositary on behalf of such Owner. As agent for such Owner,
the Depositary will arrange for Shares so purchased to be deposited and for
depositary shares to be delivered to such Owner in transactions exempt from, or
not subject to, the registration requirements of the Securities Act of 1933
under a separate deposit agreement to be entered into between the Company and
the Depositary providing for the issuance of depositary receipts subject to
appropriate restrictions on deposit and withdrawal of Shares and transfers of
such depositary shares as required by United States securities laws.
Except as otherwise provided in the preceding paragraph, the
Company and the Depositary will not offer rights to owners unless a registration
statement is in effect with respect to both such rights and any securities to be
received upon exercise of such rights under the Securities Act of 1933 or unless
the offering and sale of such securities to such
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Owners are exempt from registration under the Securities Act of 1933. Nothing in
the Deposit Agreement shall create any obligation on the part of the Company to
file a registration statement in respect of any rights or securities for any
purpose.
(15) CONVERSION OF FOREIGN CURRENCY. Whenever the Depositary
or the Custodian shall receive foreign currency, by way of dividends or other
distributions or as the net proceeds from the sale of securities, property or
rights, and if at the time of the receipt thereof the foreign currency so
received can in the reasonable judgment of the Depositary be converted on a
reasonable basis into Dollars and transferred to the United States, the
Depositary shall, subject to any restrictions imposed by applicable law,
regulations or permits, convert or cause to be converted, by sale or in any
other manner that it may determine, such foreign currency into Dollars, and such
Dollars shall be distributed, as promptly as practicable, net of any reasonable
and customary expenses incurred by the Depositary in connection with the
conversion of currency pursuant to Section 4.05 of the Deposit Agreement, to the
Owners entitled thereto as of the record date fixed pursuant to Section 4.06 of
the Deposit Agreement in accordance with any applicable provisions of Sections
4.01, 4.02, 4.03 and 4.04 of the Deposit Agreement. Such distribution may be
made upon an averaged or other fair and practicable basis without regard to any
distinctions among Owners resulting from exchange restrictions or otherwise.
If such conversion or distribution can be effected only with
the approval or license of any government or agency thereof, the Depositary
shall file as promptly as practicable such application for approval or license,
if any, as it may deem desirable; PROVIDED, HOWEVER, that if such application is
made on behalf of the Company, such application shall not be filed unless
approved by the Company, which approval shall not be unreasonably withheld or
delayed.
If at any time the Depositary shall determine, following
consultation with the Company, that in its judgment any foreign currency
received by the Depositary or the Custodian is not, pursuant to applicable law
or otherwise, convertible on a reasonable basis into Dollars transferable to the
United States, or if any approval or license of any government or agency thereof
which is required for such conversion is denied or in the opinion of the
Depositary is not obtainable, or if any such approval or license is not obtained
within a reasonable period as determined by the Depositary, the Depositary may
distribute the foreign currency (or an appropriate document evidencing the right
to receive such
A-13
foreign currency) received by the Depositary or the Custodian to, or in its
discretion may hold such foreign currency proceeds uninvested for the respective
accounts of, the Owners entitled to receive the same, without liability for
interest thereon.
If any such conversion of foreign currency, in whole or in
part, cannot be effected for distribution to some Owners entitled thereto, the
Depositary may in its discretion make such conversion and distribution in
Dollars to the extent permissible to the Owners entitled thereto for whom such
conversion and distribution is practicable and may distribute the balance of the
foreign currency (or an appropriate document evidencing the right to receive
such foreign currency) received by the Depositary or the Custodian to, or hold,
such balance uninvested and without liability for the respective accounts of,
the Owners entitled thereto for whom such conversion and distribution is not
practicable.
(16) FIXING OF RECORD DATE. Whenever any cash dividend or
other cash distribution shall become payable or any distribution other than cash
shall be made, or whenever rights shall be issued with respect to the Deposited
Securities, or whenever for any reason there occurs a change in the number or
type of Deposited Securities that are represented by each American Depositary
Share, or whenever the Depositary shall receive notice of any meeting of, or
solicitation of consents or proxies from, holders of Shares or other Deposited
Securities or whenever the Company or the Depositary finds it necessary or
convenient in respect of any matter, the Depositary shall fix a record date
(which, to the extent practicable, shall be the same as any corresponding record
date set by the Company with respect to Shares, and after consultation with the
Company if such date is to be different from any such record date established by
the Company in respect of the Shares) for the determination of the Owners who
shall be entitled to receive such dividend, distribution or rights, or the net
proceeds of the sale thereof, or to give instructions for the exercise of voting
rights at any such meeting or in respect of any such solicitation or to receive
information as to any such meeting or solicitation, or for fixing the date on or
after which each American Depositary Share will represent the changed number or
type of Deposited Securities, subject to the terms and conditions of this
Deposit Agreement. If the American Depositary Shares shall be listed on any
stock exchange, then any such record date shall be fixed in accordance with any
applicable rules of such stock exchange.
(17) VOTING OF SHARES. Upon receipt of notice of any meeting
of holders of Shares or other Deposited Securities,
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the Depositary shall, as soon as practicable thereafter, mail to the Owners (i)
a copy or summary in English of the notice of such meeting sent by the Company
to the Depositary pursuant to Section 5.06 of the Deposit Agreement, (ii) a
statement that the Owners as of the close of business on a record date
established by the Depositary pursuant to Section 4.06 of the Deposit Agreement
will be entitled, subject to any applicable provisions of French law, the
STATUTS of the Company and the Deposited Securities (which provisions, if any,
including any applicable provisions relating to double voting rights, will be
summarized in pertinent part in such statement), to instruct the Depositary as
to the exercise of the voting rights, if any, pertaining to the Shares or other
Deposited Securities represented by such Owner's American Depositary Shares,
(iii) copies or summaries in English of any materials or other documents
provided by the Company for the purpose of enabling such Owner to give
instructions for the exercise of such voting rights and (iv) a voting
instruction card to be prepared by the Depositary and the Company (a "Voting
Instruction Card") and setting forth the date established by the Depositary for
the receipt of such Voting Instruction Card (the "Receipt Date"). Voting
instructions may be given only in respect of a number of American Depositary
Shares representing an integral number of Shares. In addition, a precondition
for exercising any voting rights with respect to any holders of American
Depositary Shares who are not Owners of the Receipts evidencing such American
Depositary Shares on the books of the Depositary is that such holders arrange
for deposit in a blocked account established for such purpose of the relevant
number of American Depositary Shares for a period to commence on a date to be
fixed by the Depositary after consultation with the Company (which date will not
be more than five days prior to the date of the shareholders' meeting) until the
completion of such meeting (the "Blocked Period"). The Depositary will use its
best efforts to implement and maintain procedures to allow for blocking of
American Depositary Shares as contemplated by the preceding sentence.
Upon the request of an Owner, the Depositary will, as promptly
as practicable, cause the number of deposited Shares represented by such Owner's
American Depositary Shares to be held in registered form. In accordance with
French companies law and the STATUTS of the Company, Shares that have been held
in registered form in the name of the same holder since at least the beginning
of the second full calendar year preceding the date of the shareholders' meeting
in question are entitled to double voting rights. Consequently, deposited Shares
will be entitled to such double voting rights to the sole extent that (i) since
at least the beginning of the second full calendar year preceding the date of
the shareholder meeting in
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question the Depositary, upon the request of the Owners, has held such Shares in
registered form; (ii) such Owners have at least since the same date continuously
held Receipts evidencing American Depositary Shares representing such number of
deposited Shares and (iii) such Owners have certified to the Depositary, as of
the date the Voting Instruction Card is executed, that they are, and at all
times since the beginning of the second full calendar year preceding the date of
the shareholder meeting in question have been, Eligible Owners. For purposes of
determining whether deposited Shares may be entitled to double voting rights,
upon a transfer or surrender of American Depositary Shares by an Owner, unless
otherwise specified by such Owner, the Depositary and the Company shall presume
that the most recently acquired American Depositary Shares are being transferred
or surrendered by such Owner. Accordingly, the Depositary will use reasonable
efforts, as hereinafter provided, to exercise or cause to be exercised double
voting rights in accordance with instructions received from Owners that have
satisfied the conditions set forth in clauses (i) to (iii) above, in respect of
the number of Shares which are entitled to double voting rights represented by
the American Depositary Shares evidenced by Receipts held by such Owners.
Upon receipt by the Depositary from an Owner of American
Depositary Shares of a properly completed Voting Instruction Card on or before
the Receipt Date, the Depositary will either, in its discretion, (i) use
reasonable efforts, insofar as practical and permitted under any applicable
provisions of French law and the STATUTS of the Company, to vote or cause to be
voted the Shares represented by such American Depositary Shares in accordance
with any non-discretionary instructions set forth in such Voting Instruction
Card or (ii) forward such instructions to the Custodian and the Custodian will
use reasonable efforts, insofar as practical and permitted under any applicable
provisions of French law and the STATUTS of the Company, to vote or cause to be
voted the Shares represented by such American Depositary Shares in accordance
with any nondiscretionary instructions set forth in such Voting Instruction
Card. The Depositary will only vote, or cause to be voted, or attempt to
exercise the right to vote that attaches to, Shares represented by American
Depositary Shares in respect of which a Voting Instruction Card has been
received. In the case of a Voting Instruction Card received in respect of any
holder of American Depositary Shares who is not the Owner of the Receipt
evidencing such American Depositary Shares on the books of the Depositary, the
Depositary will not vote or cause to be voted the number of Shares represented
by such American Depositary Shares unless the Depositary has received
verification that such number of American Depositary Shares
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has been deposited in a blocked account for the Blocked Period. The Depositary
(i) will not vote, or cause to be voted, or attempt to exercise the right to
vote that attaches to, Shares represented by American Depositary Shares in
respect of which the Voting Instruction Card is improperly completed or in
respect of which (and to the extent) the voting instructions included in the
Voting Instruction Card are illegible or unclear, and (ii) will, in the case
where the Voting Instruction Card is properly completed except for voting
instructions relating to any resolutions to be submitted to the shareholders'
meeting that have been left blank, vote in favor of such resolutions.
Notwithstanding anything in the Deposit Agreement to the
contrary, the Depositary and the Company may modify, amend or adopt additional
voting procedures from time to time as they determine may be necessary or
appropriate to comply with French or United States law or the STATUTS of the
Company.
(18) CHANGES AFFECTING DEPOSITED SECURITIES. Upon any change
in nominal value, split-up, consolidation or other reclassification of Deposited
Securities, or upon any recapitalization, reorganization, merger, consolidation
or sale of assets affecting the Company or to which it is a party, any
securities which shall be received by the Depositary or any Custodian in
exchange for, conversion of, replacement or otherwise in respect of Deposited
Securities shall, subject to the terms of the Deposit Agreement and applicable
law, including any applicable provisions of the Securities Act of 1933, be
treated as new Deposited Securities under the Deposit Agreement, and each
American Depositary Share shall, subject to the terms of the Deposit Agreement
and applicable law, including any applicable provisions of the Securities Act of
1933, thenceforth represent an appropriately adjusted proportional interest in
the Deposited Securities so received in exchange or conversion or replacement or
otherwise, unless additional or new Receipts are delivered pursuant to the
following sentence. In any such case the Depositary may, and shall if the
Company shall so request, execute and deliver additional Receipts as in the case
of a stock dividend on the Shares, or call for the surrender of outstanding
Receipts to be exchanged for new Receipts specifically describing such new
Deposited Securities. Upon the occurrence of any change or other event covered
by this Section with respect to the Deposited Securities, the Depositary shall
give notice thereof in writing to all Owners.
(19) REPORTS. At such time as the Company shall become subject
to the periodic reporting requirements of the Securities Exchange Act of 1934,
the Company will file certain
A-17
reports with the Securities and Exchange Commission required under such Act.
Such reports and communications will be available for inspection and copying at
the public reference facilities maintained by the Commission located at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇.
The Depositary shall make available for inspection by Owners
at its Corporate Trust Office copies of the Deposit Agreement and any reports
and communications, including any proxy solicitation material, received from the
Company which are both (a) received by the Depositary as the holder of the
Deposited Securities and (b) made generally available to the holders of such
Deposited Securities by the Company. The Depositary will also send as promptly
as practicable to the Owners English language versions or summaries in English
of such reports and communications when furnished by the Company as provided
pursuant to Section 5.06 of the Deposit Agreement. The Depositary shall keep
books for the registration of Receipts and transfers of Receipts which at all
reasonable times shall be open for inspection by the Owners and the Company;
PROVIDED, HOWEVER, that such inspection shall not be for the purpose of
communicating with Owners in the interest of a business or object other than the
business of the Company or a matter related to the Deposit Agreement or the
Receipts.
(20) WITHHOLDING. In the event that the Depositary determines
that any dividend or other distribution in property other than cash (including
Shares and rights to subscribe therefor) is subject to any tax or other
governmental charges which the Depositary is obligated to withhold, the
Depositary may (after consultation with the Company) by public or private sale
dispose of all or a portion of such property (including shares and rights to
subscribe therefor) in such amounts and in such manner as the Depositary deems
necessary and practicable to withhold any such taxes or charges and the
Depositary shall distribute the net proceeds of any such sale after deduction of
such taxes or charges to the Owners entitled thereto, in proportion to the
number of American Depositary Shares held by them respectively, all in
accordance with the applicable provisions of the Deposit Agreement.
The Depositary agrees to use reasonable efforts to follow the
procedures established, or that may be established, by the French Treasury to
enable eligible United States Owners and beneficial owners of Receipts to
qualify for a reduced withholding tax rate of 15%, if available at the time
dividends are paid, to recover any excess French withholding taxes initially
withheld or deducted with respect to dividends and other distributions to such
Owners and beneficial owners, to receive any payment in respect of the AVOIR
FISCAL for which
A-18
such Owners and beneficial owners may be eligible from the French Treasury or to
receive a refund of any PRECOMPTE paid to the French Treasury by the Company.
Upon request of any United States Owner of Receipts the
Depositary will provide a copy of Form RF 1A EU No. 5052 or Form RF 1A EU no.
5053, as applicable, or such other form as may be promulgated from time to time
by the French tax authorities for such purpose, together with instructions to
such Owner and beneficial owners. The Depositary shall promptly arrange for the
filing with the French tax authorities of all such forms completed by United
States beneficial owners of Receipts, and returned in sufficient time so that
such forms may be filed by December 31 of the year following the calendar year
in which the related dividend is paid.
(21) LIABILITY OF THE COMPANY AND THE DEPOSITARY. Neither the
Depositary nor the Company nor any of their respective directors, employees,
agents or affiliates shall incur any liability to any Owner or beneficial owner
of any Receipt if by reason of any provision of any present or future law or
regulation of the United States or any other country or of any other
governmental or regulatory authority or stock exchange, or by reason of any
provision, present or future, of the STATUTS of the Company, or by reason of any
provision of any securities issued or distributed by the Company, or any
offering or distribution thereof, or by reason of any act of God or war or other
circumstances beyond their control, the Depositary or the Company shall be
prevented, delayed or forbidden from, or be subject to any civil or criminal
penalty on account of, doing or performing any act or thing which by the terms
of the Deposit Agreement or Deposited Securities it is provided shall be done or
performed; nor shall the Company or the Depositary or any of their respective
directors, employees, agents or affiliates incur any liability to any owner or
beneficial owner of any Receipt by reason of any non-performance or delay,
caused as aforesaid in the performance of any act or thing which by the terms of
the Deposit Agreement it is provided shall or may be done or performed, or by
reason of any exercise of, or failure to exercise, any discretion provided for
in the Deposit Agreement. Where, by the terms of a dividend or other
distribution pursuant TO Section 4.01, 4.02, 4.03 of the Deposit Agreement, an
offering or distribution pursuant to Section 4.04 of the Deposit Agreement, or
for any other reason, such dividend or other distribution or offering may not be
made available to Owners, and the Depositary may not dispose of such dividend or
other distribution or offering on behalf of such Owners and make the net
proceeds available to such Owners, then the Depositary shall not make such
dividend or other distribution or offering and shall allow any rights,
A-19
if applicable, to lapse. Each of the Company and its agents and their respective
officers, directors, employees and affiliates assumes no obligation nor shall it
be subject to any liability under the Deposit Agreement or the Receipts to any
Owners or beneficial owners of Receipts, except that it agrees to perform its
obligations specifically set forth in the Deposit Agreement without negligence,
willful misconduct or bad faith. Each of the Depositary and its agents and their
respective officers, directors, employees and affiliates assume no obligation
nor shall it be subject to any liability under the Deposit Agreement or the
Receipts to any Owners or beneficial owners of Receipts (including, without
limitation, liability with respect to the validity or worth of the Deposited
Securities), except that it agrees to perform its obligations specifically set
forth in the Deposit Agreement without negligence, willful misconduct or bad
faith. Without limiting the foregoing, neither the Depositary or its agents nor
the Company or its agents shall be under any obligation to appear in, prosecute
or defend any action, suit or other proceeding in respect of any Deposited
Securities or in respect of the Receipts, which in their respective opinions may
involve them in expense or liability, unless indemnity satisfactory to it
against all expenses and liabilities is furnished as often as may be required,
and the Custodian shall not be under any obligation whatsoever with respect to
such proceedings, the responsibility of the Custodian being solely to the
Depositary. None of the Depositary or its agents or the Company or its agents
shall be liable for any action or non-action by it or them in reliance upon the
advice of or information from legal counsel, accountants, any person presenting
Shares for deposit, any Owner or holder of a Receipt, or any other person
believed by it in good faith to be competent to give such advice or information.
The Depositary shall not be responsible for the manner in which any vote of any
Deposited Securities is cast or the effect of any such vote, provided that any
such action or inaction is in good faith and in accordance with the Deposit
Agreement. Subject to the Company's STATUTS and Section 2.09 of the Deposit
Agreement, the Depositary may own and deal in any class of securities of the
Company and its affiliates and in Receipts.
(22) RESIGNATION AND REMOVAL OF THE DEPOSITARY; SUBSTITUTION
AND ADDITION OF CUSTODIAN. The Depositary may at any time resign as Depositary
under the Deposit Agreement by written notice of its election so to do delivered
to the Company, such resignation to take effect upon the appointment of a
successor depositary and its acceptance of such appointment as provided in the
Deposit Agreement. The Depositary may at any time be removed by the Company by
written notice of such removal, effective upon
the appointment of a
A-20
successor depositary and its acceptance of such appointment as provided in the
Deposit Agreement.
In case at any time the Depositary acting hereunder shall
resign or be removed, the Company shall use its best efforts to appoint a
successor depositary, which shall be a bank or trust company having an office in
the Borough of Manhattan, The City of New York.
Whenever the Depositary in its discretion determines, after
consultation with the Company to the extent practicable, that it is in the best
interest of the Owners to do so, it may appoint a substitute or additional
custodian or custodians approved by the Company, which shall be an accredited
intermediary acting through a specified office located in France, and the term
"Custodian" shall also refer to each such substitute or additional Custodian.
(23) AMENDMENT OF THE DEPOSIT AGREEMENT AND RECEIPTS. The form
of the Receipts and the Deposit Agreement may at any time and from time to time
be amended by agreement in writing between the Company and the Depositary in any
respect which they may deem necessary or desirable. Any amendment which shall
impose or increase any fees or charges (other than taxes and other governmental
charges, registration fees, cable, telex or facsimile transmission charges,
delivery costs or other such expenses), or which shall otherwise prejudice any
substantial existing right of Owners, shall, however, not become effective as to
outstanding Receipts until the expiration of 90 days after written notice of
such amendment shall have been mailed to the Owners of outstanding Receipts.
Every Owner at the time any such amendment so becomes effective shall be deemed,
by continuing to hold such Receipt, to consent and agree to such amendment and
to be bound by the Deposit Agreement or the Receipt as amended thereby. In no
event shall any amendment impair the right of the Owner hereof to surrender this
Receipt and receive therefor the Deposited Securities represented hereby, except
to comply with mandatory provisions of applicable law.
(24) TERMINATION OF THE DEPOSIT AGREEMENT. The Depositary will
at any time at the direction of the Company terminate the Deposit Agreement by
mailing notices of such termination to the Owners of all Receipts then
outstanding at least 30 days prior to the date fixed in such notice for such
termination. The Depositary may likewise terminate the Deposit Agreement (upon
30 days' prior written notice of such termination to the Company and the Owners
of all Receipts then outstanding) if at any time 90 days after the Depositary
shall have delivered to the Company a written notice of its
A-21
resignation sent by registered mail, a successor depositary shall not have been
appointed and accepted its appointment as provided in the Deposit Agreement. The
Depositary shall mail notice of such termination to the Owners of all Receipts
then outstanding at least 30 days prior to the date fixed in such notice for
such termination. On and after the date of termination, each Owner shall, upon
(i) surrender of each of its Receipts at the Depositary's Corporate Trust
Office, (ii) payment of the fees of the Depositary for the surrender of Receipts
as provided in paragraph (9) of this Receipt and (iii) payment of any applicable
taxes and governmental charges, be entitled to delivery, to him or upon his
order, of the whole number of Deposited Securities represented by the American
Depositary Shares evidenced by such Receipts and to the net proceeds of the sale
of any fractional Deposited Securities represented thereby. If any Receipts
shall remain outstanding after the date of termination, the Depositary
thereafter shall discontinue the registration of transfers of Receipts, shall
suspend the distribution of dividends to the Owners thereof, and shall not give
any further notices or perform any further acts under the Deposit Agreement,
except that the Depositary shall continue to collect dividends and other
distributions pertaining to Deposited Securities, shall sell rights as provided
in the Deposit Agreement and shall continue to deliver Deposited Securities
together with any dividends or other distributions received with respect thereto
and the net proceeds of the sale of any rights or other property, in exchange
for Receipts surrendered to the Depositary (after deducting, in each case, the
fee of the Depositary for the surrender of a Receipt, expenses for the account
of the Owner of such Receipt in accordance with the terms and conditions of the
Deposit Agreement, and any applicable taxes or governmental charges). At any
time after the expiration of one year from the date of termination, the
Depositary may sell the Deposited Securities then held under the Deposit
Agreement and may thereafter hold uninvested the net proceeds of any such sale,
together with any other cash then held by it under the Deposit Agreement,
unsegregated and without liability for interest, for the PRO RATA benefit of the
Owners which have not theretofore surrendered their Receipts, such Owners
thereupon becoming general creditors of the Depositary with respect to such net
proceeds. Thereafter, the Depositary will be discharged from all obligations
under the Deposit Agreement, except to account for such net proceeds and other
cash (after deduction, in each case, of the fee of the Depositary for the
surrender of a Receipt and any expenses for the account of the Owner of such
Receipt in accordance with the terms and conditions of the Deposit Agreement,
and any applicable taxes or governmental charges) and except for its obligations
under Section 5.08 of the Deposit Agreement.
A-22
(25) COMPLIANCE WITH U.S. SECURITIES LAW. Notwithstanding
anything in the Deposit Agreement to the contrary, the Company and the
Depositary each agrees that it will not exercise any rights it has under the
Deposit Agreement to prevent the withdrawal or delivery of Deposited Securities
in a manner which would violate U.S. securities laws, including but not limited
to Section I A(1) of the General Instructions to the Registration Statement of
Form F-6, as amended from time to time, under the Securities Act of 1933.
A-23